Senior Professional in Human Resources Exam Prep: Workforce Planning and Employment

This chapter is from the book 

Workforce Planning and Employment Law

Objective: Gain an Understanding of Workforce Planning and Employment Law

Since the early 1960s there has been great legislative activity in the area of employment law. Most of this legislation has been enacted to prevent employment discrimination. The SPHR should be familiar with these laws and guide the organization in not only compliance with the legal requirements of the law, but also in its intent. The following regulations, executive orders, laws, and precedent case law are discussed in this section:

• Civil Rights Act of 1866
• United States Constitution
• Equal Pay Act (1963)
• Civil Rights Act of 1964
• Executive Orders 11246 (1965) and 1375 (1967) and 11478 (1969)
• Age Discrimination in Employment Act (1967)
• Consumer Credit Protection Act (1968)
• Fair Credit Reporting Act (1970)
• Rehabilitation Act (1973)
• Vietnam Era Veterans' Readjustment Assistance Act (1974)
• Privacy Act of 1974
• Pregnancy Discrimination Act (1978)
• Uniform Guidelines on Employee Selection Procedures (1978)
• Immigration Reform and Control Act (1986)
• Worker Adjustment and Retraining Notification Act (1988)
• Employee Polygraph Protection Act (1988)
• Americans with Disabilities Act (1990)
• Civil Rights Act of 1991
• Uniformed Services Employment and Reemployment Act (1994)
• Congressional Accountability Act (1995)
• Fair and Accurate Credit Transactions Act (2003)
• Precedent Case Law
• Griggs v. Duke Power (1971)
• McDonnell-Douglas Corp v. Green (1973)
• Abermarle Paper Company v. Moody (1975)
• Washington v. Davis (1976)

Civil Rights Act of 1866

The Thirteenth Amendment to the United States Constitution was passed in 1865 at the end of the Civil War and abolished slavery. However, it did not guarantee equal rights for all groups and states began passing laws limiting the rights of newly emancipated slaves in a number of areas, including employment. In response, the Civil Rights Act of 1866 was passed. It prohibits illegal discrimination based on race or ethnicity in the formation or enforcement of contracts. The act also allows for punitive and compensatory damages in cases of intentional racial discrimination. Its impact on preventing discrimination is limited to cases in which an actual employment contract exists and it doesn’t cover other types of illegal discrimination based on sex, age, and so forth.

United States Constitution

The Fourteenth Amendment of the United States Constitution was passed in 1868 largely because the states were not complying with the provisions of the Civil Rights Act of 1866. It states, in part:

• No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; not shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

This seems to imply that all persons should be treated fairly and equally in matters of employment because the courts consider employment to be a property right. Had all employers and governments abided by this requirement and complied with the intent of the Civil Rights Act of 1866, the massive employment legislation of the twentieth century would not have been necessary.

Equal Pay Act (1963)

The Equal Pay Act of 1963, which is an amendment to the Fair Labor Standards Act, is covered comprehensively in Chapter 5, "Compensation and Benefits." The act prohibits discrimination in the payment of compensation based on sex for jobs that are similar in terms of skill, effort, responsibility, and working conditions.

Civil Rights Act of 1964

The Civil Rights Act of 1964 is the most comprehensive and far reaching legislation dealing with employee relations. Title VII of the act prohibits discrimination in employment as follows:

• It shall be an unlawful employment practice for an employer—
1. To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
2. To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

The outcome of the act, along with its amendments, has been to create protected classes. Those are groups specifically identified in the law for special protection from illegal discrimination. They are as follows:

• Race (African-American, Native American, Hispanic-American, and Asian-American)
• Color
• Religion
• Sex (women)
• National origin
• Employees over 40 (Age Discrimination in Employment Act)
• Disabled (Americans with Disabilities Act)

The act creates the Equal Employment Opportunity Commission (EEOC) in the Department of Labor to administer and enforce the act. The act prohibits retaliation against individuals exercising their rights under the act. This includes both voicing opposition to the organization’s employment practices and filing complaints with the EEOC.

Employers covered by the act are

• Those that have 15 or more employees for each working day in each of 20 or more weeks in the current or preceding calendar year
• All private and public educational institutions
• Federal, state, and local governments
• Public and private employment agencies
• Labor unions with 15 or more members
• Joint labor/management committees for apprenticeships and training

The act also imposed certain record-keeping and reporting requirements on employers. Covered employers must keep employment-related records that can be requested by either the Equal Employment Opportunity Commission or the Office of Contract Compliance Programs. Those records include documents associated with recruitment and selection, promotions, discipline, compensation and benefits, training, and so forth. Retention requirements for the documents are discussed later in this chapter.

In addition certain employers are required to submit an annual report to EEOC. The most common annual report is the EEO-1, which is required to be submitted by the following employers:

• Employers with 100 or more employees, except for state and local governments
• Federal contractors with at least 50 employees and contracts of $50,000 or more
• Financial institutions with at least 50 employees and that hold government funds or issue savings bonds

The EEO-1 requires the workforce be reported by race and gender for nine categories of employees:

• Officials and managers
• Professionals
• Technicians
• Sales workers
• Office and clerical
• Craft workers (skilled)
• Operatives (semiskilled)
• Laborers (unskilled)
• Service workers

Several exceptions in the law permit discrimination that would otherwise be prohibited. They are as follows:

• Business necessity A practice that is job-related and necessary for the safe and efficient operation of the organization may be permitted even if it negatively affects certain employees covered under the act. For example, a Ph.D. in physics may be required for research physicist positions even though some groups might be less likely to possess that degree.
• Bona fide occupational qualification (BFOQ) Permits an organization to exclude persons from consideration on a basis that would otherwise be illegal. For example, a film company wanting to hire an actor to play the female lead role could exclude all males from consideration.
• Seniority systems Systems giving preferential treatment based on seniority are generally legal.

Executive Orders 11246 (1965), 11375 (1967), and 11478 (1969)

Executive Order 11246, as amended by Executive Order 11375, requires federal contractors and subcontractors with contracts in excess of $10,000 in any 12-month period to comply with Title VII of the Civil Rights Act of 1964 and to take positive steps to eliminate employment barriers for women and minorities.

A contractor with contracts of more than $50,000 and 50 or more employees must develop and implement a written affirmative action plan to increase the participation of protected classes in the workforce. Executive Order 11246 creates the Office of Federal Contract Compliance Programs (OFCCP) within the Department of Labor to implement and monitor compliance under the orders. Noncompliance can result in cancellation of current contracts and ineligibility for future contracts with the federal government. Affirmative action is further discussed later in this chapter.

Executive Order 11478 prohibits discrimination in employment practices by the United States Postal Service and federal government agencies on the basis of race, color, religion, sex, national origin, handicap, or age. The executive order also requires federal agencies to prepare and implement affirmative action plans for federal employees.

Age Discrimination in Employment Act of 1967

This act, commonly referred to as ADEA, prohibits employment discrimination against employees who are at least 40 years of age. It has been amended several times, including the Older Workers’ Benefit Protection Act of 1990, which is discussed in Chapter 5.

The act covers employers that have 20 or more employees in each working day for 20 or more weeks in the current or preceding year and is administered and enforced by the EEOC. The act prohibits discrimination against employees over 40 in hiring, promotion, compensation, retirement, layoff, discharge, and any other terms, conditions, or privileges of employment. Employers may not retaliate against employees for exercising their rights under the law. In general, an employer may not require a mandatory retirement age. However, certain groups of employees—airline pilots, for example—may be subject to mandatory retirement based on safety requirements. In addition, highly paid executives over the age of 65 may be subject to involuntary retirement if they were in the position at least two years before the retirement and are entitled to immediate retirement benefits of at least $44,000.

Exceptions to the act are as follows:

• Bona fide seniority systems, even though they might adversely affect workers over 40, are generally allowed. For example, an employee who is 35 years of age with 15 years of service might be entitled to certain employment rights and benefits over an employee who is 55 but has worked with the company for only 5 years.
• Certain benefits may be adjusted based on age on the principle of equal costs or equal benefits. For example, an employer may provide less life insurance coverage to an older employee as long as the cost of the insurance is equal to what is spent on employees less than 40 years of age.
• The employer may take appropriate disciplinary action against covered employees if it does so for good cause.
• The employer may discriminate against persons over 40 using the requirements of BFOQ. For example, an advertising agency could discriminate against someone over 40 when hiring a model for children’s clothing.

Consumer Credit Protection Act (1968)

This act is discussed in depth in Chapter 5. It provides protections for employees whose wages have been garnished.

Fair Credit Reporting Act (1970)

This act, often referred to as the FCRA, regulates the process of obtaining and using credit and other types of information on employees. Consumer reporting agencies (CRAs) are businesses or persons that are paid a fee to assemble, analyze, evaluate, or report information on individuals for third parties. These reports are referred to in the regulations as consumer reports. The most common use of CRAs is to obtain credit reports on current or prospective employees. However, other vendors who provide background checks or perform investigations for a fee are also covered by the act. The employer must certify to the CRA that it is in compliance with all applicable provisions of the FCRA.

An employer that wants to obtain a consumer report on a current employee or applicant must advise the person of its intent. In addition, the employer must obtain written consent from the employee or applicant to obtain the report. There are certain exemptions to the pre-investigation notice and consent that are covered later in the discussion regarding the Fair and Accurate Credit Transactions Act.

An employer making a decision based wholly or in part on the consumer report that negatively affects the employee or applicant (failure to hire, termination, disciplinary action and so forth) must provide that individual with a pre-adverse action disclosure. Included in the disclosure is a document, prescribed by the Federal Trade Commission (FTC), which provides employees with information on their rights and a copy of the report. In general, the employer must then provide a reasonable amount of time, usually five business days, to refute the findings. After the final decision is made and effected, the employer must give the employee or applicant another notice that includes

• The name, address, and telephone number of the CRA
• A statement indicating that the employer, not the CRA, made the decision regarding the adverse action and that the CRA would not be able to provide specific reasons why the action was taken
• Notice of the right of the individual’s right to obtain a free copy of the report from the CRA within 60 days
• Notice of the right of the individual to contact the CRA to dispute the accuracy of the information and to provide more complete information

Rehabilitation Act of 1973

This act prohibits employment discrimination based on disability. Those covered by the act are as follows:

• Contractors or subcontractors that have federal contracts in excess of $2,500
• Depositories of federal funds
• Organizations receiving federal grants or aid assistance

Contractors that have contracts in excess of $10,000 must take affirmative action to hire the disabled, and contractors with contracts of more than $50,000 and at least 50 employees must also develop and implement affirmative action plans to hire qualified individuals with a disability. These plans may be integrated with affirmative action plans required under Executive Order 11246 and the Vietnam Era Veterans’ Readjustment Assistance Act. The OFCCP monitors compliance with the law. Failure to comply can result in cancellation of current contracts and ineligibility for future federal contacts.

Vietnam Era Veterans’ Readjustment Assistance Act (1974)

This act prohibits discrimination against disabled veterans, veterans of the Vietnam era, veterans who served on active duty in during a war, campaign, expedition, or military operation and recently separated veterans. Recently separated veterans are those that have been released from active duty less than three years. The act applies to the federal government and employers having at least $50,000 worth of federal contracts and 50 or more employees. Contractors meeting this threshold are required to

• Develop and implement a written affirmative action plan to employee covered veterans.
• List job opportunities with the local unemployment office. Exceptions are temporary positions lasting less than four days, jobs that are to be filled internally, and certain top-level positions.
• Prepare and submit an annual report (VETS-100) that reports hiring practices with respect to covered veterans.

The act is administered by the OFCCP. Failure to comply with the provision of the act can lead to contract cancellation and disbarment from future federal contracts.

Privacy Act of 1974

This act applies only to federal government employees and prohibits the release of information contained in an employee’s personnel file, with limited exceptions, without the employee’s written release. Federal employees also have the right to review their personnel files.

Employers must be very careful in releasing employment-related information on employees. Release could subject the employer to tort action under common law for invasion of privacy, defamation of character, and so forth.

Pregnancy Discrimination Act (1978)

This act is an amendment to the Civil Rights Act of 1964 and prohibits discrimination in employment matters based on pregnancy, childbirth, or related medical conditions. An employer must treat pregnant women the same for all employment purposes, including fringe benefits, as other employees who are similar in their ability or inability to work. Employer policies must apply equally to pregnant employees as to other employees. For example, if the employer provides temporary disability insurance for its employees, pregnancy must be considered the same as any other temporary disability. Employers may not require a pregnant employee to leave work because of the pregnancy if she is able to perform the essential function of the job. However, the act does not require any special accommodations or benefits for pregnant employees that are not provided to other employees.

Uniform Guidelines on Employee Selection Procedures (1978)

The Uniform Guidelines on Employee Selection Procedures (UGESP) is considered to be the most comprehensive document regarding the legality of employee selection procedures. They are administrative regulations published in the Code of Federal Regulations. The document provides guidance as to how employers should manage their various employment systems (recruitment, testing, selection, promotion, discipline, and so forth) to comply with federal employment law prohibiting discrimination. Two approaches for proving that illegal discrimination has not occurred are addressed in the guidelines: no disparate impact and job relatedness/business necessity. These approaches are discussed next.

No Disparate Impact

The regulations provide guidance on the determination of adverse impact, also referred to as disparate impact. Adverse impact occurs when members of a protected class are negatively affected by employment decisions. As will be discussed later in this chapter, employees alleging illegal discrimination must prove first that they are a member of a protected class and then that they have been the victim of disparate treatment or adverse impact. Disparate treatment is a relatively simple concept; it means that members of a protected class are treated differently from others. For example, requiring a woman to take a strength test but not requiring the same of a man. Disparate treatment is discussed further later in this chapter.

The determination of adverse impact is a bit more complicated and there are many statistical methods of doing so. However, UGESP provides a relatively simple way of determining whether adverse impact has occurred. The methodology is referred to as the 4/5ths rule and can be used for analysis both internally and externally. Internally it can be used to determine whether an employer procedure or policy is adversely impacting a protected class. It also can be used to analyze the organization’s workforce in relation to the external workforce to determine whether underutilization exists. Both methods are described in the following sections.

Internal Analysis of Employment Practices

Under UGESP, adverse impact occurs when the selection rate for a protected class is lower than 80% of the selection rate of the group with the highest selection rate. Selection rate is a broad term and can be applied to a number of practices. For example:

• Selection for an interview
• Passing an interview
• Selection for a position
• Selection for promotion
• Selection for training
• Performance awards and bonuses

As an example, an organization just finished a large recruitment effort that resulted in the hiring of 200 employees. The data regarding the number of employees interviewed and the number hired are shown in Table 3.1. The organization wants to determine whether its hiring practices resulted in adverse impact.

Table 3.1 Internal Adverse Impact Analysis

Group	# Interviewed	# Hired	Selection Rate
Hispanic Males	30	20	60%
White Males	100	80	80%
African-American Females	100	65	65%
Asian-American Females	50	35	70%
Totals	310	200

To determine whether the selection rates identified in the table resulted in adverse impact, the adverse impact threshold must be determined. This is determined by calculating 4/5ths (80%) of the highest selection rate. In this case, the highest selection rate is that of white males and is 80%. The adverse impact threshold is 4/5ths of 80% or 64% (.80 x .80). Any selection rate below 64% is an indication of adverse impact. In this case, Hispanic males have been adversely impacted. At this point the organization might elect to modify the practice, abandon the practice, or justify the practice using job relatedness and business necessity.

Analysis of the Workforce Against the External Labor Market

The organization might want to know whether the internal workforce mirrors the demographics of the external workforce. This analysis is required if the employer is required to prepare affirmative action plans and otherwise can be used to evaluate the organization’s diversity efforts.

Table 3.2 compares the composition of the organization’s workforce, in percentages, with the composition of the relevant labor market. The organization wants to know whether its practices have resulted in adverse impact and underutilization of a protected class.

Table 3.2 External Adverse Impact Analysis

Group	% of Internal Workforce	% of Labor Market	4/5ths of Labor Market
African-Americans	15	20	16
Asian-Americans	10	8	6.4
Native Americans	4	4	3.2
Hispanic-Americans	21	25	20

In this example adverse impact and underutilization are shown for African-Americans because they compose 15% of the internal workforce, but the adverse impact threshold is 16%. Note that Hispanic-Americans compose 21% of the workforce when they compose 25% of the external labor market. However, 21% is above the adverse impact threshold of 20%.

Job Relatedness / Business Necessity

An employer might not be illegally discriminating against a protected class, even if its employment practices result in adverse action for a protected class. For the purposes of UGESP, practices are referred to as tests. Recruitment, interviews, job simulations, and actual tests are all referred to as tests. All tests must be job-related and they must be valid predictors of performance on the job. Two types of validity are used, as was discussed at length in Chapter 2, "Strategic Management."

Content validity is used to prove that the practice is job-related. Job-related means that the practice (test) actually contains elements of the knowledge, skills, and ability required in the job. Criterion validity is used to prove that the test or practice is a valid predictor of future performance. Concurrent validity and predictive validity are two methods of validating the capability of a test to predict future performance. Those methods were discussed in Chapter 2.

However, it is not enough to prove that the tests are job-related. The practices must also be reasonably related to the safe and efficient operation of the organization. This concept is known as business necessity. The organization must prove that it would incur significant expenses, or suffer some harm, if it did not use the particular practice. For example, an organization could argue that a mathematical aptitude test is highly correlated with performance on a particular job and that not using it would cause the organization to select employees who would fail on the job, thus resulting in increased cost associated with high turnover. The organization could also argue that high error rates caused by these employees result in expensive rework.

Immigration Reform and Control Act (1986)

This act, often referred to as IRCA, was passed for two purposes. The first is to prohibit employers from hiring persons who are not permitted to work in the United States. Passed largely to reduce illegal immigration, the act prohibits the hiring, recruiting, and referral of undocumented workers and unauthorized aliens for a fee. Compliance with the act requires that the employer

• Not knowingly hire unauthorized aliens
• Verify the employee’s identity and work status
• Maintain records regarding the employee’s identity

Employers must verify the identity of the employee and eligibility to work in the United States by completing and signing a Form I-9. The form must be completed within 72 hours of hiring and kept for a minimum of three years or one year after the employee leaves employment, whichever is greater.

The second purpose of the act is to prohibit discrimination in hiring and termination based on national origin or citizenship status. Employers may not discriminate in the hiring or termination of individuals based on

• National origin
• Citizenship status
• As a citizen
• As an alien lawfully admitted for either temporary and permanent residence
• As a refugee granted asylum

The employer may not retaliate against an employee for exercising any rights under the act. In addition, an employer may not refuse to honor documents that show immigration status nor may the employer require additional documentation beyond that required in the act. Finally, the act does not prohibit employers from giving preference in employment to a United States citizen over an alien if the two have equal qualifications.

With very limited exceptions—union hiring halls, for example—the act applies to all employers. However, the discrimination provisions of the act apply only to employers with four or more employees. The act originally was enforced by the United States Immigration and Naturalization Service (INS), but responsibility has now been transferred to the Department of Homeland Security.

Employers who fail to comply with the form I-9 requirements can be subject to fines ranging from $100 to $1,000 per violation. Each instance of not documenting an employee can be found to be a separate violation. Additional fines can be imposed for falsification of documents and knowingly accepting fraudulent documents. These fines can range up to $5,000 per incident for repeated incidents. Repeated hiring of unauthorized aliens can result in fines up to $10,000 for each alien hired. Finally, employers who consistently violate the act can be subject to criminal prosecution.

Worker Adjustment and Retraining Notification Act (1988)

This act, most frequently referred to as the WARN act, requires advance notification to employees in the event of mass layoffs and plant closings. The act applies to employers that employ 100 or employees (excluding part-time employees) or 100 or more employees that in the aggregate work 4,000 hours per week, excluding overtime. Subsidiaries and independent contractors may be considered in the calculation for coverage if they have common ownership.

The employer must provide 60 days advance notice to employees, their designated representative, the dislocated worker unit (unemployment office), and the chief elected official in the governmental unit to which the organization pays the highest taxes when any of the following events occurs at a single site of employment during any 30-day period:

• The permanent or temporary shutdown of a plant that results in 50 or more employees, excluding part-time employees, losing their jobs
• A mass layoff if
• -50 or more employees, excluding part-time employees, are laid off and the layoffs constitute at least 33% of the workforce or
• 500 or more employees, excluding part-time employees

There are exceptions to the notification requirements that might permit less than a 60-day advance notice in the cases of

• Natural disasters
• Business conditions that could not have been reasonably foreseen

However, if a reduced notice exception exists, the employer must give the notice as soon as it is practical to do so. The notice must include an explanation for the shortened notice.

Failure to provide notice can result in significant costs to the employer. Former employees or their designated representative (a union) may sue the employer for back wages, including health benefits, for each day of violation up to the full 60 days. For example, if the employer provided notice but closed the plant or executed the layoff 30 days after the notice, it could be liable for an additional 30 days of compensation. The actual amount that can be awarded is reduced by any compensation or severance payments made during the violation period. Employers may also be subject to fines for violation of the act.

You should be familiar with the conditions under which WARN notification is required.

Employee Polygraph Protection Act (1988)

The act, often referred to as EPPA, restricts most private employers from conducting polygraph (lie detector) tests on prospective and current employees. It is enforced by the Wage and Hour Division of the Department of Labor. Pre-employment polygraph tests are not permitted, with the following exceptions:

• Local, state, or federal governments and certain federal contractors involved in law enforcement or national security
• Private employers who provide certain security services (armored cars, security alarm systems, private guards, and so forth)
• Private employers that are involved in manufacturing, distributing, or dispensing controlled substances

Private employers, however, may administer polygraph tests to employees that are subjects of investigations regarding economic loss or injury suffered by the employer. For example, an employer may administer a polygraph to an employee suspected of theft, misappropriation of funds, embezzlement, and so forth.

This employer right is not without limitation. The employer must have a reasonable cause to believe that the employee was involved in the activity being investigated and had access to the lost, stolen, or damaged property. The employee does not have to take the polygraph and, if he or she elects to, may terminate the test at any time. The employer must provide the employee with a statement indicating why the test is requested and the questions that will be asked. The employer is prohibited from taking a personnel action based on the employee’s refusal to take the test. Furthermore, the employer cannot use the polygraph test results as the sole determinant of a personnel action. There must be other evidence that the employee was involved in the alleged infraction.

Americans with Disabilities Act (1990)

This act, commonly referred to as ADA, is the major federal legislative act that prohibits employment discrimination against the disabled. Title I of the act prohibits discrimination in employment decisions against qualified individuals with a disability. This includes job application procedures, hiring, firing, promotion, compensation, selection for training and any other terms, conditions, or privileges of employment.

The act is enforced by the EEOC and covers employers that have 15 or more employees for 20 or more calendar weeks in the current of preceding year, employment agencies, labor unions with fifteen or more employees, state and local governments, and joint labor-management apprenticeship committees. These are the same employers covered by the Civil Rights Act of 1964.

For an employee to be covered by the act, the individual must be disabled and qualified for the job. After that is determined, the employer might have an obligation to engage in reasonable accommodation. These subjects are covered in the following sections.

What Is a Disability?

The act covers a disabled individual that

• Has a physical or mental impairment that substantially limits one or more major life function
• Has a record of such impairment
• Is regarded or treated as having an impairment

Physical impairment refers to any physiological condition or loss of one or more body systems (neurological, respiratory, speech organs, cardiovascular, digestive, and so forth). Mental impairment encompasses such conditions as mental retardation, mental or emotional illness, and learning disabilities. The Supreme Court has ruled that correction or control of an impairment by medicine or medical device to the level of normal functioning may remove the individual from coverage under the act. For example, eyeglasses that restore vision to the normal range or medicine that controls blood pressure may return the employee to normal functional capacity, thus eliminating the limitation on a major life activity. Major life functions include

• Caring for oneself
• Reproduction
• Performing manual tasks
• Walking
• Seeing
• Hearing
• Speaking
• Breathing
• Learning
• Sitting or standing
• Lifting or reaching
• Thinking or concentrating
• Interacting with others

However, certain conditions are specifically exempted from the definition of disability in the act. They are as follows:

• Homosexuality and bisexuality
• Sexual behavior disorders (such as pedophilia and exhibitionism)
• Gender identity disorders not resulting from physical impairments
• Compulsive gambling
• Pyromania
• Kleptomania
• Current illegal use of drugs

What Is a Qualified Individual?

A disabled person, to be a qualified individual, must be able to perform the essential functions of the job with or without accommodation. Job analysis, discussed later in this chapter, is a critical process for determining those tasks that are essential for successfully performing in the job. A function is essential if the following conditions are true:

• It is the reason why the job exists. In other words, the job was created specifically to perform the function in question.
• The function cannot be assigned to another employee. If assignment of a particular task would disrupt the primary purpose of the job, it is not an essential function. For example, the primary job responsibility of the job is to load trucks with a forklift whereas a minor function is to perform periodic maintenance on the forklift, such as changing the tires. If the organization has a department that performs other maintenance on the forklifts, the function of changing tires could likely be easily reassigned to that department without disturbing the primary purpose of the job. Thus, changing tires would not be an essential function.
• The function requires a great deal of skill not found in employees in other job categories. The more skill required, the more difficult it is to assign the function to another employee and, consequently, the more likely that function would be considered an essential function.

What Is Reasonable Accommodation?

An employee or applicant that is disabled but qualified to perform the essential functions of the job is entitled to reasonable accommodations by the employer. The intent of the law is that this be an interactive process with the employee or applicant requesting the accommodation and the employer responding in an appropriate manner. However, it is good practice for the SPHR to be proactive in this area, particularly if it is obvious that accommodation is needed and the nature of the disability might prevent the employee from asking for the accommodation. The employer can require documentation for disabilities or requests for accommodation that are not obvious. Failure to do so relieves the employer from responsibility and the employee is not entitled to accommodation under the law.

Reasonable accommodation is the modification of the workplace or work requirements to permit the individual to perform the essential functions of the job unless those accommodations would create and undue hardship on the employer. There are no legislative rules that clearly define reasonable accommodation as opposed to undue hardship. Each situation must be determined individually. Often the determination is based on the resources available to the employer. A reasonable accommodation for a large corporation might very well be undue hardship for a smaller one. The EEOC has determined that there are three categories of accommodation. They are as follows:

• Job application process The job application and selection process must not be discriminatory. Accommodations such sign language interpreters, modification of testing procedures, applications in Braille, and so forth might be appropriate in certain circumstances.
• Work environment Accommodations in the work environment are virtually unlimited. Accommodations can be made to the physical layout itself such as making the restroom handicapped-accessible, widening aisles for wheelchair access, providing teletype phone capabilities, and so forth. The nature of the work and the work flow itself can be modified by eliminating nonessential job functions or assigning those tasks to another individual. Finally, the work schedule itself can be modified as an accommodation.
• Benefits and privileges of employment In some circumstances accommodations can be made to allow the employee to continue to work or to deal with the medical treatment associated with the disability. If the employee can no longer perform the essential function of the job, reassignment to another job is often preferable to termination. However, there is no obligation under the law to create a special position for the employee. In addition, leaves of absences to attend to medical issues might be appropriate.

ADA restricts the use of pre-employment medical examinations and medical inquiries. An employer cannot inquire into the medical conditions and medical history of an individual prior to employment. The employer, however, may ask whether the employee can perform the essential functions of the job. Pre-employment medical examinations are prohibited. However, medical examinations can be required after a conditional offer of employment is given to the applicant.

Medical examinations must be nondiscriminatory in that either all applicants or all applicants in a given job category can be required to have a pre-employment medical examination. Requiring medical examinations for only those whom the employer believes might be incapable of performing the job is a violation of the act. Medical examinations for current employees may be required if they are clearly job-related, required by law, required to determine whether a disability exists or a particular accommodation is required and, in limited circumstances, to determine whether the employee can perform the job (fitness for duty examinations).

After the employee has received a conditional job offer, medical information necessary for normal processing may be collected. For example, medical information needed for health and life insurance or by the occupational health nurse may be collected. The employer is responsible for maintaining the confidentiality of any medical information collected. Access to medical records must be restricted to those who need to know, and the records themselves must be kept separate from other employment-related records.

Employment discrimination is not the only prohibition covered by the act. Title II of the act prohibits discrimination against the disabled in government programs and public transportation. Title III requires access for the disabled to public and commercial facilities, and Title IV requires closed-captioning services in television broadcasts for those who are hearing impaired. Finally, the act prohibits retaliation against an employee for exercising any right provided by the act.

Civil Rights Act of 1991

The Civil Rights Act of 1991 is an amendment to the Civil Rights Act of 1964. It was passed largely to offset some conservative judicial decisions by the Supreme Court in the late 1980s, often called the Reagan Court. Major provisions of the act are as follows:

• Returned the burden of proof to the original standard. The Supreme Court had, in the late 1980s, issued a decision that placed the burden of proof on the employee to prove that the employer had engaged in illegal discrimination. The act changed the burden of proof back to the original standard. An employee has the burden to prove that he or she is a member of a protected class and that the employer’s employment practices have resulted in adverse impact on members of the protected class. After passage of the act, the burden of proof then switches to the employer to prove that the adverse impact was not a result of illegal discrimination.
• Allowed for jury trials and compensatory and punitive damages. The Civil Rights Act of 1964 permits only actual damages. That is damages for lost wages, attorney fees, and court costs. The Civil Rights Act of 1866 provides for additional damages but only in specified situations. The Civil Rights Act of 1991 permits damages to compensate the employee for pain and suffering, mental anguish, and other intangible damages. It also permits the courts to award punitive damages designed to punish the employer for egregious instances of intentional discrimination.
• Prevents the use of a "mixed motive" defense. Prior to the act, employers could defend discriminatory action by proving that the action was justified in the absence of discriminatory intent. For example, the employer could argue that the employee’s performance was so poor that termination would have occurred in any event. The act prohibits such defenses and requires the plaintiff only to prove that protected class status was a factor in the decision to take an action.
• Prohibits the practice of race-norming. Many employers began the process of adjusting the scores of protected classes on tests used in the employment process either by adding to the score or establishing different passing scores for protected classes. The process was used to level the playing field when statistics revealed that certain protected classes scored lower on the particular test. The act prohibits such practices.
• Extended protection of the Civil Rights Act of 1964. Protection was extended to include certain federal and state government employees not previously covered under the act. Protection was also granted to United States citizens working for United States organizations in foreign countries except where those rights conflict with local law or customs.

Table 3.3 Compensatory and Punitive Damage Limitations (Civil Rights Act of 1991)

Size of Organization	Limit
15–100 employees	$ 50,000
101–200 employees	$100,000
201–500 employees	$200,000
More than 500 employees	$300,000

Uniformed Services Employment and Reemployment Act (1994)

This act prohibits discrimination in employment actions based on military service. It is discussed in further depth in Chapter 5.

Congressional Accountability Act (1995)

This act brought employees of the United States Congress under coverage of 11 major employee relations and employment-related laws. Those laws are as follows:

• Fair Labor Standards Act (1938)
• Civil Rights Act of 1964, as amended
• Age Discrimination in Employment Act (1967)
• Occupational Safety and Health Act of 1970
• Rehabilitation Act of 1973
• Civil Service Reform Act (1978)
• Employee Polygraph Protection Act (1988)
• Worker Adjustment and Retraining Notification Act of 1988
• Americans with Disabilities Act (1990)
• Family and Medical Leave Act (1993)
• Veterans Reemployment Act (1994)

Fair and Accurate Credit Transactions Act (2003)

This act, frequently referred to as FACTA, amended the Fair Credit Reporting Act discussed earlier. The act was passed largely in reaction to the increasing problem of identity theft. It provides certain rights for consumers, such as the right to get a free copy of their credit report annually, and mandates a number of obligations for providers, resellers, and users of credit reports. As a user of credit reports and other third-party information, FACTA predominantly affects HR in two ways:

• Pre-investigation notification and consent are no longer required when contracting with a third party for certain types of investigations, such as allegations of employee misconduct, violations of law, or violations of employer policies. The post-investigatory notification requirements are still mandated.
• The employer cannot maintain credit reports on employees. After an employment decision is made, based in whole or in part on a credit report, the report must be removed from the files and disposed of.

Precedent Case Law

Court decisions regarding employment and antidiscrimination law are constantly interpreting and modifying the current statues. As discussed earlier, Supreme Court rulings become the law of the land. Where those rulings differ from the current intent of the legislative body, they can be overturned only by congressional action as in the case of the Civil Rights Act of 1991. The following sections compose a list of precedent cases with which the SPHR should be familiar.

Griggs v. Duke Power (1971)

The Supreme Court decision in Griggs created the judicial concept of adverse impact and established two major points:

• Discrimination does not need to be overt or intentional to violate the Civil Rights Act of 1964. It is the outcome of the practices that is in question. If a practice results in differential effect (adverse impact), it is a potential violation of the law.
• The employer must prove that a practice is job-related as a business necessity if that practice creates adverse impact.

McDonnell-Douglas Corp. v. Green (1973)

This Supreme Court ruling established the concept of disparate treatment and created what is known as the McDonnell-Douglas test. Disparate treatment, by definition, is intentional discrimination. To establish a prima facie case of disparate treatment, the court set the following conditions:

• The person belongs to a protected class.
• The individual applied for a job and was qualified for the job for which the employer was seeking applicants.
• The individual was rejected for the job.
• After the rejection, the employer continued to seek applications from persons with the same or similar qualifications of the individual.

Abermarle Paper Company v. Moody (1975)

The Supreme Court decision in Abermarle expanded the guidance provided in Griggs by clarifying that employment tests, including performance evaluation systems, used to make employment decisions must not only be job-related but that they must also be valid predictors of performance on the job. The effect of the ruling was essentially to make the federal regulations contained in the Uniform Guidelines for Employee Selection Procedures take on the impact of law.

Chandler v. Roudebush (1976)

The Supreme Court ruled that federal employees have the same rights under federal employment discrimination statutes as private sector employees.

Washington v. Davis (1976)

The Supreme Court ruled in Washington that an employer practice, in this case a verbal skills test for police officers, can be job-related even if it creates adverse impact for a protected class. To be job-related, a practice must be a valid predictor of performance.

Regents of the University of California v. Bakke (1978)

The Supreme Court ruled that a medical school could legitimately consider race in its admission procedures but that race could not be the only factor considered.

United Steelworkers v. Weber (1979)

The Supreme Court ruled that voluntary affirmative action quotas agreed to by an employer and a union are legal. However, the court indicated that such agreements can be used within very narrow limitations so as to not trammel the interest of nonprotected groups.

Meritor Savings Bank v. Vinson (1986)

The Supreme Court ruled that a hostile work environment was a violation of Title VII even if there are no negative employment consequences and that an economic effect is not required for sexual discrimination to occur.

Johnson v. Santa Clara County Transportation Agency (1987)

The Supreme Court ruled that gender could be used as one factor in an employment decision if under-representation is shown and the affirmative action plan does not have firm quotas.

Martin v. Wilks (1988)

The Supreme Court ruled that reverse discrimination could occur if the nonprotected class is not consulted in the negotiations for a consent decree giving a protected class employment preferences.

City of Richmond v. J. A. Croson Company (1989)

The Supreme Court ruled that rigid numerical quota systems were unconstitutional when past discrimination was not documented.

Taxman v. Board of Education of Piscataway (1993)

The United States Court of Appeals ruled that a nonremedial affirmative action plan cannot violate the nondiscrimination mandate of the Civil Rights Act of 1964.

Harris v. Forklift Systems, Inc. (1993)

The Supreme Court ruled that a "reasonable person" test must be used to determine the existence of a hostile work environment that violates Title VII.

Hopwood v. State of Texas (1996)

The United States Court of Appeals ruled that taking race into account, even as a means of achieving diversity, violates the Fourteenth Amendment guarantee of equal protection. The Supreme Court refused to hear this case on appeal.

Ocale v. Sundowner Offshore Services, Inc. (1998)

The Supreme Court ruled that Title VII prohibitions against discrimination based on sex includes same sex harassment.

Faragher v. City of Boca Raton (1998)

The Supreme Court ruled that the employer has vicarious, as opposed to strict, liability for the hostile environment created by a supervisor unless it establishes and clearly communicates procedures for handling sexual harassment complaints and the employee fails to follow those procedures. The Court further stated that if the harassment results in a tangible employment action, there is no defense and the employer is strictly liable.

Ellerth v. Burlington Northern (1998)

The Supreme Court defined a tangible employment action as a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Grutter v. Bollinger et al. (2003)

The Supreme Court ruled that narrowly tailored use of race in admission decisions to a law school does not violate the Fourteenth Amendment guarantee of equal protection when it is used to further a compelling governmental interest in the educational benefits that flow from a diverse student body. The Court ruled that the decision must be made based on a highly individualized review of each applicant; that no decision can be based automatically on one variable such as race; and that the process must ensure that all factors contributing to diversity are meaningfully considered.

Gratz et al. v. Bollinger et al. (2003)

The Supreme Court ruled that giving preference to minorities for admission to a college undergraduate program serves a governmental interest in the educational benefits that result from a racially and ethnically diverse student body. However, the Court ruled that the procedures used in this case violated the Fourteenth Amendment guarantee of equal protection because they were not sufficiently narrowly tailored.

General Dynamics Land Systems, Inc. v. Cline (2004)

The Supreme Court ruled that the Age Discrimination in Employment Act does not protect younger workers who are over 40 years of age from employment decisions that favor older workers (reverse age discrimination).