Human resource management 9th edition noe solutions manual

Three theories of discrimination are presented along with court case examples.. List the major federal laws that require equal employment opportunity and the protections provided by each

Please click here to access the new HRM Failures case associated with this chapter HRM Failures features real-life situations in which an HR conflict ended up in court Each case includes a discussion questions and possible answers for easy use in the classroom HRM Failures are not included in the text so that you can provide your students with additional real-life content that helps engrain chapter concepts

Chapter Summary

The legal environment is one of the critical environmental factors that affects the management

of people This chapter first describes the U.S legal system, including the legislative bodies, regulatory agencies, and judicial bodies whose decisions affect the legality of HRM practices Major laws and executive orders, particularly those pertaining to elements of discrimination, are then reviewed Three theories of discrimination are presented along with court case examples Next, sexual harassment and the Americans with Disabilities Act are discussed Finally, the chapter reviews what policies and practices employers may develop regarding employee safety

Learning Objectives

After studying this chapter, the student should be able to:

1 Identify the three branches of government and the role each plays in influencing the

legal environment of human resource management

2 List the major federal laws that require equal employment opportunity and the

protections provided by each of these laws

3 Discuss the roles, responsibilities, and requirements of the federal agencies

responsible for enforcing equal employment opportunity laws

4 Identify the three theories of discrimination under Title VII of the Civil Rights Act and

apply these theories to different discrimination situations

5 Discuss the legal issues involved with preferential treatment programs

6 Identify behavior that constitutes sexual harassment and list things that an organization

can do to eliminate or minimize it

7 Identify the major provisions of the Occupational Safety and Health Act (1970) and

the rights of employees that are guaranteed by this act

Extended Chapter Outline

Note: Key terms appear in boldface and are listed in the "Chapter Vocabulary" section

Opening Vignette:

Wal-Mart’s Legal Problems

One of the largest discrimination lawsuits in the history of U.S employment law is making its way through the court system In March of 2011, the Supreme Court heard arguments whether

or not the plaintiffs in a suit, which alleges that Wal-Mart discouraged the promotion of women store employees to managerial positions, (Dukes vs Wal-Mart) can file a class action suit representing all women who had worked at Wal-Mart Wal-Mart contends, however, that the alleged victims, who worked in 170 job classifications across 3400 stores do not have enough in common to qualify as a single class action

Discussion Question

1 If you were a female employee at Wal-Mart, what would your reaction be to the question about whether or not you could be included in a class action lawsuit against the company?

Student responses, of course, can vary Look for evidence that students understand what class action means, what discrimination means, and look for evidence that they reasoned and carefully arrived at their responses

I Introduction

A Understanding the legal environment of business, particularly the laws

affecting the management of people, prepares a manager to manage people while staying within the legal constraints

II The Legal System in the United States

A The U.S Constitution sets forth the foundation of our system It affects HRM

B The legislative branch of the federal government consists of the House of

Representatives and the Senate These bodies enact laws that govern many HR activities

Example: Congress enacted Title VII of the Civil Rights Act, which ensured

minority groups’ equal opportunity in a number of areas

C The executive branch consists of the president of the United States and the

regulatory agencies the president oversees

1 The president can propose bills to Congress, which, if passed, become

law

2 The president has veto power over bills passed by Congress

3 Regulatory agencies, under the authority of the president, have

responsibility for enforcing the law

4 The president can issue executive orders that regulate the activities of

organizations that have contracts with the federal government

5 The president can influence the Supreme Court through the arguments

of the attorney general

6 The president appoints all judges in the federal judicial system, subject

to legislative branch approval (The current president has the opportunity to appoint a large number of judges, potentially changing the predominant judicial philosophy.)

D The judicial branch consists of the federal court system, which is made up of

three levels

1 The first level consists of the U.S district courts and quasi-judicial

administrative agencies

Example: The National Labor Relations Board hears cases regarding

disputes between unions and management

2 The U.S Court of Appeals hears appeals from the district courts

3 The Supreme Court serves as the court of final appeal; its decisions

may be overturned only through legislation

Competing Through Globalization:

I-Working Conditions

Hon Hai Precision Industry Co., also known as Foxconn, is a major supplier of components to Apple for their various i-products (i-pods, i-phones, etc.) Hon Hai had 14 of its employees either attempt to or successfully commit suicide by jumping from company buildings The reason for these events was attributed to long working hours While the rate of suicide in this instance was not different from the rate among China’s general population, the company’s initial response was a bit out of line – they installed nets to catch would-be jumpers

Eventually, audits revealed that the company was in violation of Apple’s workplace standards and policies as well as China’s employment laws

Eventually, the company made changes to the working conditions and provided employees with higher wages, a cap on overtime hours, mental health counseling services, recreational facilities, and training courses These changes have resulted in drastic cost increases and decreases in profit margin This case illustrates some of the challenges companies face

ramifications to this issue – for example, think about the public relations fallout

experienced by various clothing manufacturers when the child labor scandals broke out

III Equal employment opportunity refers to the government's attempt to ensure that all

individuals have an equal chance for employment, regardless of race, color, religion, sex, or national origin (see Table 3.1 in the text for a summary of EEO laws)

A Constitutional Amendments

1 The Thirteenth Amendment of the Constitution abolished slavery in the

United States

2 The Fourteenth Amendment forbids the state to take life, liberty, or

property without due process of law and prevents the states from

denying the equal protections of the law This has been applied

recently in a reverse discrimination case, Bakke v California Board of

Regents The court ruled in favor of Bakke; a white applicant to the

University of California at Davis medical school A quota system had precluded Bakke from being considered for 16 spaces held specifically for members of racial minority groups

B Congressional Legislation

1 The Reconstruction Civil Rights Acts (1866 and 1871) granted all

persons the same property rights as white citizens, as well as other rights such as that of entering into and enforcing contracts Courts have interpreted one section of these laws as granting individuals the right to make and enforce employment contracts

2 The Equal Pay Act of 1963 requires that men and women in the same

organization who are doing equal work must be paid equally If pay differences are a function of merit, seniority, and so forth, then the differences are allowable

3 Title VII of the Civil Rights Act of 1964 is the major piece of

legislation regulating EEO in the United States Title VII makes it illegal for an employer to "fail or refuse to hire or discharge any individual, or otherwise discriminate against them, with respect to his compensation, terms, conditions, or privileges of employment because

of the individual's race, color, religion, sex, or national origin."

4 The Age Discrimination in Employment Act (ADEA) of 1967

prohibits discrimination against employees over the age of 40 (See Figure 3.1 in text)

5 The Vocational Rehabilitation Act of 1973 covers federal contractors

and requires them to engage in affirmative action for disabled individuals

6 The Vietnam Era Veteran's Readjustment Act of 1974 requires

federal contractors to take affirmative action toward employing Vietnam veterans

7 Pregnancy Discrimination Act: An amendment to Title VII of the

Civil Rights Act, it makes illegal discrimination on the basis of pregnancy, childbirth, or related medical conditions as a form of unlawful sex discrimination

8 The Civil Rights Act of 1991 amends Title VII of the 1964 Civil

Rights Act, the Americans with Disabilities Act, and the ADEA This act was written in response to five 1989 Supreme Court cases The CRA allows compensatory and punitive damages when discrimination has been intentional or reckless, although damage limits are imposed (See Table 3.2 in the text)

9 The Americans with Disabilities Act (ADA) of 1990 protects

individuals with disabilities from being discriminated against in the workplace by prohibiting discrimination in all employment practices

It requires that "reasonable accommodations" be made as long as they

do not present an "undue burden" upon the employer

B Executive Orders are directives issued and amended unilaterally by the

president Two affect HRM practice:

1 Executive Order 11246 prohibits government contractors from

discrimination based on race, color, religion, sex, and national origin Affirmative action must be taken

2 Executive Order 11478 requires the federal government to base all its

employment policies on merit and fitness and specifies that race, color, sex, religion, and national origin should not be considered

IV Enforcement of Equal Employment Opportunity

A The Equal Employment Opportunity Commission (EEOC) is a division of

the Department of Justice responsible for enforcing most of the LEO laws Following, its three major responsibilities are detailed:

1 Investigation and Resolution—After the filing of a complaint, the

EEOC has 60 days to investigate Dismissal or reconciliation are the two possible outcomes The complainant may sue in federal court if not satisfied

2 Information Gathering—EEOC monitors hiring practices by reviewing

EEO-1 reports filed annually by firms

3 Issuance of Guidelines—EEOC determines and issues guidelines that

help employers comply with the law

Example: The Uniform Guidelines on Employee Selection Procedures were

issued jointly by EEOC, Departments of Labor and Justice, and the U.S Civil Service Commission

B The Office of Federal Contract Compliance Procedures (OFCCP) is

responsible for enforcing executive orders that cover companies that have federal government contracts Businesses with more than $10,000 in contracts must have affirmative action plans The three components are listed below:

1 Utilization analysis is a comparison of the race, sex, and ethnic

composition of the employer's work force with that of the available labor supply (by job group)

2 The goals and timetables are the part of a written affirmative action

plan that specifies the percentage of women and minorities that an employer seeks to have in each job group and the date by which that percentage is to be attained

3 Action steps are the written affirmative plan that specifies what an

employer plans to do to reduce underutilization of protected groups

4 The OFCCP annually audits government contractors to ensure

compliance Debarment (canceling or suspending contracts) is the

strongest enforcement penalty

V Types of Discrimination—Legal scholars have identified three theories of

discrimination (See Table 3.3 in the text)

A Disparate Treatment exists when individuals in similar situations are treated

differently and when the different treatment is based upon the individual's race, color, religion, sex, national origin, age, or disability status

1 The plaintiff has the burden of proof and must show that the plaintiff

belongs to a protected group, the plaintiff applied for and was qualified for the job, the plaintiff was rejected, and the position remained open or was filled by someone with similar qualifications

2 The defendant’s rebuttal – Once the plaintiff has made a prima facie

case for discrimination, the burden shifts to the defendant to produce some nondiscriminatory reason for not hiring the plaintiff, as listed below:

a Better qualifications

b Bona fide occupational qualifications (BFOQ)—A

charac-teristic that is necessary, rather than preferred, for a job

3 If the defendant provides a legitimate, nondiscriminatory reason for its

employment decision, the burden shifts back to the plaintiff (statistical evidence of a pattern may be used here)

a McDonnell Douglas Corp v Green delineated the four criteria

for a prima facie case of discrimination

4 In a mixed-motive case the defendant acknowledges that some

discriminatory motive existed but argues that the same hiring decision would have been reached even without the discriminatory motive An

example is the Hopkins v Price Waterhouse case Gender stereotypes

and performance were both claimed as reasons for denial of partnership

B Disparate impact occurs when a facially neutral employment practice

disproportionately excludes a protected group from employment opportunities

(facially neutral means that it lacks obvious discriminatory content yet affects

one group to a greater extent than other groups) The Supreme Court inferred

disparate impact in Griggs v Duke Power

1 The burden of proof rests on the plaintiff to establish a prima facie case

by showing that the questionable employment practice disproportionately affects a protected group relative to a majority group

a The four-fifths rule says that a test has disparate impact if the

hiring rate for the minority group is less than four-fifths (80 percent) of the hiring rate for the majority group

b The standard deviation rule uses actual probability

distrib-utions to determine adverse impact This analysis uses the difference between the expected hiring rates for minority groups and the actual hiring rate to determine whether the difference between these two values is greater than would occur by chance

c The Wards Cove Packing Co v Antonio case involved a

statistical analysis of utilization rates in cannery and noncannery jobs (pay rates for the types of jobs were quite different) CRA 1991 requires that once the prima facie case has been met, the burden of proof falls on the defendant

2 The defendant's rebuttal must show that the employment practice is a

"business necessity." This can be accomplished by showing that the practice bears a relationship to some legitimate employer goal

3 If the employer shows that the employment practice is the result of

some business necessity, the plaintiff’s last resort is to argue that other employment practices could sufficiently meet the employer’s goal without adverse impact Under such circumstances, the defendant can

be found guilty

a In Griggs v Duke Power, it was shown that the employer

required either a high school diploma or passing scores on two nationally developed tests However, the company had not studied the relationship of these selection devices to ability to

do the job Employees already on the job without high school degrees were performing satisfactorily Thus, Duke Power lost the case

C Reasonable Accommodation—places a special obligation on an employer to

affirmatively do something to accommodate an individual’s disability or religion

1 Religion and Accommodation—Individuals who hold strong religious

beliefs find that some of the observations and practices of their religion come into contact with work duties (See Figure 3.2 in the text)

2 Disability and Accommodation—Employers are not only to refrain

from discrimination (ADA) but they are also obligated to take affirmative steps to accommodate individuals who are protected under the act

Evidence-Based HR

People with disabilities no longer have to struggle with technology, as there is a proliferation

of assistive technologies that adapt computers for disabled individuals These technologies include screen magnifiers, speech recognition software, video captioning, and screen readers However, a study conducted by researchers at the Employment and Disability Institute at Cornell University discovered that out of 10 jobs boards and 31 corporate e-cruiting web sites, none of them met the standards for Bobby Bobby is a software program designed to check for errors that cause accessibility concerns Phase 2 of this study discovered that only 1 in 10 members of the Society for Human Resource Management (SHRM) said they knew that their firm had evaluated their websites for accessibility for people with disabilities

Retaliation for Participation and Opposition—Title VII states that employers cannot

retaliate against employees for either "opposing" a perceived illegal employment practice or

"participating in a proceeding,” related to an alleged illegal employment practice

1 Opposition refers to expressing to someone through proper channels

that you believe that an illegal act has taken place

2 Participation refers to actually testifying in an investigation, hearing, or

court proceeding regarding an illegal employment act

3 However, there is no unlimited right to present one's employer as racist

or sexist, particularly if an employee goes outside of the appropriate channels

VI Current Issues Regarding Diversity and Equal Employment Opportunity—

Organizational demography is changing, and therefore issues regarding diversity are increasingly important

A Sexual Harassment—The Clarence Thomas Supreme Court confirmation

hearings increased the visibility of the issue of sexual harassment Sexual

harassment refers to unwanted sexual advances (see in the text Table 3.4 and

Figure 3.3 for the number of sexual harassment complaints filed with the EEOC)

1 Quid pro quo harassment occurs when some type of benefit or

punishment is made contingent upon the employee submitting to sexual advances

Example: The Bundy v Jackson case facts showed that the plaintiff

repeatedly received sexual propositions from her fellow employees and supervisor She rejected these advances and was eventually passed over for promotion without reason

2 A hostile working environment occurs when someone's behavior in the

workplace creates an environment that makes it difficult for someone

of a particular sex to work

Example: Ron Clark Ford of Amarillo, Texas recently agreed to pay

$140,000 to six male plaintiffs who alleged that they and others were subjected to a sexually hostile work environment and different treatment because of their gender by male managers

3 There are three critical conditions in these cases:

a The plaintiff cannot have "invited or incited" the advances

b Harassment must have been severe

c The court must determine the liability of the organization for

actions of its employees

4 Preventative steps for firms include development of a policy statement,

training in inappropriate behaviors, development of a reporting mechanism, and disciplinary policy

B Affirmative Action and Reverse Discrimination—Affirmative Action was

conceived of as a way of taking extra effort to attract and retain minority employees

1 Imposed quota programs are negotiated with the EEOC and hold a

certain number of positions for minorities or women

2 The entire debate over affirmative action continues to invoke attention

Many people do not support the idea of quotas or preferential treatment This issue was an important topic in the 1996 presidential campaigns

C Outcomes of the Americans with Disabilities Act—Under the ADA, a firm

must make "reasonable accommodation" to a physically or mentally disabled individual unless doing so would impose "undue hardship." While this was a laudable goal, the impact of the act is not necessarily what was intended (See Table 3.5 in the text)

1 There has been increased litigation

2 The kinds of cases being filed do not reflect Congressional intent: 52

percent of the claims deal with firings rather than allegations of discrimination in hiring

3 Although the act was passed to protect people with major disabilities

such as blindness or paralysis, these types of disabilities account for less than 4 percent of the disabilities claimed

4 The law has not resulted in a major increase in the proportion of people

with disabilities who are working

Competing through Sustainability:

Protecting Workers in the Apparel Industry

Organizations today face tough decisions when it comes to manufacturing costs Many organizations, especially those in the apparel industry, can save tremendous amounts of money by hiring third party contractors to run plants overseas – in some cases, enabling the company to hire workers for as little as $37 per month However, many of these third party

contractors do not appear concerned for issues like worker safety In Bangladesh for

example, a January 2013 factory fire killed 7 workers, and fire 2 months earlier killed 112

Some companies are taking a proactive stance to protect those individuals who are working for these third party contractors Gap, Inc announced in October 2012 that it would roll out

a comprehensive building and fire safety plan to achieve just that This plan included

features such as Chief Fire Safety Inspectors who will conduct fire safety inspections, a Worker Support Program providing up to $2 million to help workers displaced by their fire safety remediation program, and providing these vendors accelerated access to funding to enhance fire and building safety

VII Employee Safety—Regulated by both federal and state law

A The Occupational Safety and Health Act (OSHA) of 1970 is the most

comprehensive legislation regarding worker safety OSHA gave authority to the federal government to establish and enforce occupational safety and health standards for all places of employment affecting interstate commerce The Department of Health is responsible for conducting research to determine specific codes of safety for specific operations The Department of Labor can authorize individual states to substitute their own standards irk their states

1 Employee Rights under OSHA—These include the general duty

clause, which states that an employer has the duty to furnish employees

with a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm Table 3.6 in the text contains other employee rights under the act

2 OSHA Inspections—These may be instigated by employee request, by the Department of Labor as part of its targeted industry program, or as a randomly selected firm Compliance officers make unannounced visits

3 Citations and Penalties—If a compliance officer finds a violation, a

citation is issued and a fine is assessed as well The employer may

contest the citation within 15 days OSHA has been successful in raising the level of awareness of occupational safety However, occupational illnesses have risen fivefold between 1985 and 1990 Standards are restrictive, enforcement is uneven, and fines are low Safe employee behavior is an important element of outcomes

4 The effect of OSHA—OSHA has been unquestionably successful in

raising the level of awareness of occupational safety Yet, because legislation alone does not necessarily guarantee safety, many employers

go beyond the letter of the law Table 3.7 shows some of the most recent statistics regarding workplace illnesses and injuries

B Safety awareness programs are employer programs that attempt to instill

symbolic and substantive changes in the organization’s emphasis on safety There are three primary components of a safety awareness program:

1 Identifying and Communicating Job Hazards—Several techniques are

useful in identifying specific elements of a job that are hazardous

a The job hazard analysis technique breaks jobs down into

basic elements that are then rated for their potential for harm

b Technic of Operations Review (TOR) focuses on past

accidents and their causes Job hazards must be communicated

to those at risk; supervisory contact is important, while written memos provide documentation

2 Reinforcing Safe Practices—The reinforcement of safe practices may

be accomplished by using a safety incentive program Focusing on

awareness of specific injuries may be a more efficient way of handling safety and may limit the number of employees affected (See Table 3.8

in the text for a ten-step program for reducing eye-related injuries.)

3 Promoting Safety Internationally—Depending on the cultural

characteristics of given countries, differing approaches to safety in the workplace may need to be developed by U.S multinational firms Bottom-up or top-down programs will fit one culture better than another based upon whether they are individualistic or collectivist

Competing Through Technology:

Undercovers Work

Today’s fast paced work environment can get ahead of workers Many people today are taking their work to bed with them in order to keep up A recent poll conducted by Good

Technology revealed that half of their respondents read and replied to emails in bed, while a British study showed 20% or Brits spend between 2 and 10 hours work working from bed

Sounds like we are very dedicated to our work, but such dedication comes at a cost

Potential drawbacks to these behaviors can include workers potentially taking more time at work to do their personal online business (shopping, Facebook updates, etc.), insomnia, and generating feelings of guilt for turning devices off

Even bedding manufacturers are capitalizing on this trend Bedmaker E.S Klust offers a giant 7 x 7 foot bed that allows for room to spread paperwork out while in bed, and Reverie offers a split zone bed allowing 1 person to lay horizontally while the other is propped up to work

Discussion Question

1 To what extent do you think that workers working from bed is a value-added for

employers (i.e what are the benefits to the employer?) What are the costs or

drawbacks? Is it worth it?

Student answers can vary Look for evidence that students understand the facets of having employees who are dedicated to their jobs, but not a personal risk of their health,

happiness, or welfare

A Look Back

The Wal-Mart scenario discusses how Wal-Mart faces legal challenges with regard to

potentially discriminating against women in their pay systems A Wal-Mart

spokesman argues that the statistical studies were intended to help identify and

eliminate pay disparities

1 Based on what you read, do you think that Wal-Mart will win or lose the class action

pay discrimination case brought against them?

Student answers may vary Some may say that Wal-Mart will lose because it was aware of the pay discrepancies but did not correct them Some may say that the

company was aware of the sexist culture at the company and that executives

overlooked the use of demeaning terms such as “Janie Q.”

2 Assume that you have taken over the HR function at Wal-Mart and want to make sure

that your pay system is fair, so you commission a salary study that reveals pay

differences between men and women If you publicize the data and try to fix it, you open the company to liability for past discrimination What do you do?

Student answers may vary A possible suggestion that may avoid legal troubles is not

to publicize the data, but fix the pay discrepancies anyway

3 What do you think? Is a statistical disparity proof of discrimination, and if one exists,

does that open every member of the protected group up to a remedy, even if they had not individually been discriminated against?

Student answers will most likely vary This is a very opinion based question and each student has their own moral compass

Chapter Vocabulary

Equal employment opportunity

Americans with disabilities act (ADA) of 1990

Equal employment opportunity commission (EEOC)

Occupational safety and health act (OSHA)

General duty clause

Safety awareness program

Job hazard analysis technique

Technic of operations review (TOR)

Discussion Questions

1 Disparate impact theory was originally created by the court in the Griggs case before

finally being codified by Congress 20 years later in the Civil Rights Act of 1991 Given the system of law in the United States, from what branch of government should theories of discrimination develop?

Students may respond in at least two ways to this question In general, it is up to the legislative bodies to make the law However, depending upon how detailed and clear the language is, the judicial branch of the government may be compelled to interpret and apply the law in specific cases The development of the disparate theory may be viewed as being done by an inappropriately activist judicial branch or as an

appropriate interpretation of the current law

2 Disparate impact analysis (the four-fifths rule, standard deviation analysis) is used in

employment discrimination cases The National Assessment of Education Progress