09/05/03	Fall 2003
Psy 3315: Legal Issues in Employment

U.S. CONSTITUTION
1791	5th Amendment
	Guarantees equal protection and due process of law for all citizens (prohibition on federal government.).
1865	13th Amendment
	"Neither slavery or involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Discrimination may be considered a "badge or incident of slavery" and therefore subject to legal action under 13th Amendment.
1868	14th Amendment
	"... no state may deny to any person within its jurisdiction equal protection of the laws" (prohibition on states and local governments).
ACTS OF CONGRESS
1866	Civil Rights Act
	Protects the right of all citizens to make and enforce contracts (e.g., for employment; limited to racial and ethnic discrimination; no limit on size of organization).
1871	Civil Rights Act
	Grants citizens the right to bring suit in federal court if deprived of any rights or privileges guaranteed by Constitution or laws (generally limited to state and local governments, police and fire departments, public schools, colleges, hospitals).
1938	Fair Labor Standards Act (FLSA)
	Four major provisions covering (1) minimum wages (first set at $0.25 per hour; state also may have minimum wage law); (2) hours of work (e.g., requires payment of overtime at 1.5 times the standard wage for over 40 hours per week; many jobs are "exempt" from this provision) (3) child labor (e.g., minors must be over 18 to work in "hazardous" occupations; actual rules and ages vary, depending on the nature of the work, and whether employer is the child's parent); and (4) equal pay.
1963	Equal Pay Act
	Equal pay for equal work; pay differentials legal if based on seniority, merit, piece‑rate systems, or any factor other than sex; in correcting for inequity, employer required to raise wages of lower‑paid employee(s) rather than reduce wages of higher‑paid employee(s); amends FLSA.
1964	Civil Rights Act Title VII (Amended 1972; 1978; 1991)
	Outlaws discrimination in hiring, dismissal, compensation, and terms or conditions of employment on the basis of race, color, religion, sex, or national origin; established the EEOC; applies to all organizations with greater than 15 employees, labor unions and apprenticeship programs, state and government agencies, and educational institutions.
1967	Age Discrimination in Employment Act (Amended 1978; 1984; 1986; 1987)
	Prohibits discrimination in pay, benefits, or continued employment for employees over the age of 40, unless can demonstrate that age is a BFOQ for the job in question. Older workers may waive right to sue if waiver is voluntary and written simply; to some extent, eliminates mandatory retirement except for persons guaranteed an annual retirement package of $44,000 or more.
1973	Rehabilitation Act
	Requires federal contractors and subcontractors receiving $2,500 or more in contracts to recruit qualified handicapped people; coverage includes: (1) outreach assistance; (2) interviewing techniques (e.g., may ask only about ability to perform job‑related functions); (3) job accommodation assistance (physical modification or job redesign); (4) accessibility assistance (e.g., building and equipment changes; provides for some tax credits as incentive to modify); and (5) human relations training (e.g., to modify attitudes towards the disabled).
1974	Vietnam Era Veterans' Readjustment Act
	Government contractors required to list all employment openings at local office of state employment agency; preferential treatment for veterans who served in armed forces during period between August 5, 1964 to May 7, 1975.
1986	Immigration Reform and Control Act
	Employer subject to civil and criminal penalties for knowingly employing any person not legally eligible to work in U.S. Penalties for unjustified discrimination against "foreign‑looking" applicants.
1988	Worker Adjustment and Retraining Notification Act
	Employer with 100 or more employees cannot carry out a plant closing or mass layoff until the end of a 60‑day period after the employer provides written notice to employee representatives or each affected employee, the state "dislocated worker unit," as designated under Job Training Partnership Act, and the elected head of the community in which the plant is located.

1990	Americans with Disabilities Act
	Bans use of standards, criteria, or selection methods that have the effect of discriminating on the basis of a mental or physical disability that is unrelated to job performance ("essential functions") with "reasonable accommodations." "Medical" tests only after offer of employment and only if given to all applicants.
1991	Civil Rights Act
	Seeks to provide remedies for intentional discrimination, disparate impact, and harassment in employment settings, clarify definitions of "business necessity" and "job relatedness," return to the "Griggs standard," and generally overturn Supreme Court decisions (e.g., "Wards Cove") by expanding the scope of certain existing civil rights statutes to protect victims of discrimination; amends sections of the 1964 Civil Rights Act; also deals with "Glass Ceiling"; adds compensatory and punitive damages (vs. "equitable relief" such as backpay, etc.) within limits for Title VII and ADA cases when intentional or reckless discrimination occurs and is proven.
1993	Family and Medical Leave Act
	Organization with more than 50 employees must provide up to 12 weeks of unpaid leave after birth or adoption of child, care for seriously ill child, self, or other close relative. Job on return must be the same or comparable position. Employers pays for employee's health care during 12 week period (may require reimbursement by employee if she/he does not return); exemptions for "key" employees (top 10% of paid workforce) where such leave might result in "substantial economic harm" to company and those who worked less than 1,250 hours in previous 12 months.
1996	Health Insurance Portability and Accountability Act (effective April 2003)
	Establishes rules for handling, storage, and access to medical-related information. Also affects health insurance coverage for workers when they lose a job or change jobs. Different expectations for small versus large employers.
EXECUTIVE ORDERS
1965	#11246 (Amended 1968)
	Applies to federal agencies, contractors, and subcontractors; prohibits discrimination on basis of race, color, religion, or national origin; requires development and filing of affirmative action plans; enforced by OFCCP (in U.S. Department of Labor).
1967	#11375
	Applies to same groups as #11246; adds sex (gender) to the list of protected groups for #11246.
1969	#11478
	Applies to federal agencies, contractors and subcontractors; Part I requires employment for most jobs in federal government to be based on merit and fitness rather than race, color, sex, religion or national origin; requires heads of all federal agencies to establish and maintain an EEO program; Part II requires that all federal contractors and subcontractors doing $10,000 or more business with federal government comply with the above provisions; Part III indicates that given federal agency is responsible for determining that contractors comply with nondiscrimination in employment.
REGULATIONS
1978	Uniform Guidelines on Employee Selection Procedures
	Jointly issued by EEOC, Civil Service Commission (now U.S. Employment Service), Department of Labor, and Department of Justice; provides instructions and expectations governing the development, use, and documentation required for selection procedures.
CASE LAW
1971	Griggs v. Duke Power Co.
	Lack of discriminatory intent not sufficient in Title VII case. Test and other measures can be used but they must be related to job performance. Plaintiff carries the burden of proof for adverse impact of a selection device. If adverse impact is shown, burden of proof shifts to defendant to show evidence of job‑relatedness for the procedure. Guidelines entitled to "great deference."
1975	Albemarle Paper Co. v. Moody
	Partial evidence of job relatedness is insufficient; subjective criteria must be consistent with Guideline's standards (e.g., instructions to supervisors were "vague"; raters did not necessarily use a standard set of criteria); tests should be validated on the positions for which they will be used; sample for validation study should be representative of protected groups and KSAOs among applicant pool; Guidelines" entitled to great deference"; backpay award to discrimination victims even if employer had acted in "good faith."
1975	Washington, D.C. v. Davis
	Given adverse impact from use of selection procedure, performance in training program acceptable as a criterion measure to show job-relatedness of procedure (if other criteria not available and if there is evidence that training is related to important job duties).
1978	Bakke v. Regents of the University of California
	Medical School reserved 16 out of 100 entering slots for "disadvantaged" members of racial minorities (i.e., a formal quota system); given lack of evidence for a past history of discrimination, and because program set aside a specific number of spots for which whites could not compete (an "absolute bar"), and UCMS did not consider qualifications of applicants on an individual basis for the reserved slots, Court ruled Bakke had been denied equal protection of the law under the 14th Amendment.

1979	U.S. Steelworkers v. Weber (a.k.a. Kaiser Aluminum v. Weber)
	Preferential treatment of protected group members in an affirmative action plan (AAP) acceptable if employer can demonstrate that purpose of AAP was remedial in nature (e.g., by demonstrating a "conspicuous imbalance"; employer not required to acknowledge responsibility for imbalance); AAP must not "unnecessarily trample the interests" of non-minority employees (e.g., through discharge or displacement of non-minority employees); AAP must not exclude non-covered group members as a class (i.e., cannot constitute an "absolute bar"); elements of the AAP must be reasonable (e.g., evidence that plan is "temporary" in nature).
1979	Personnel Administrator Massachusetts v. Feeney
	Preferential treatment for veterans permitted (conflict between of state's "veterans' preference" employment policy and women's rights under affirmative action plan; Court agreed that state discriminated against women, but allowed preference to stand.
1981	Bundy v. Jackson
	Sexual harassment includes psychological work conditions as well as physical abuse; employer is responsible for acts of managers and supervisors.
1982	Connecticut v. Teal
	Company must insure that all parts of a multi‑step selection program have no adverse impact.
1986	OFCCP v. Ozark Air Lines
	In disability cases, organization must prove that individual cannot perform job; reasonable accommodations must be given to challenged individual.
1987	Johnson v. Santa Clara County
	White male passed over for promotion in favor of "less qualified" (2 points difference) female for skilled craft worker position; Court ruled that employer appropriately took sex into account in making decision as part of AAP that served a remedial purpose and helped to rectify a "conspicuous imbalance." Court noted that none of the 238 skilled craft positions were held by females at the time the AAP was adopted.
1988	Watson v. Fort Worth Bank & Trust
	Case focused in part on subjective selection devices (e.g., interviews); Court ruled that employer is expected to validate interview in same manner as an objective test.
1989	Wards Cove Packing Company v. Atonio
	Court appeared to change nature of evidence in Title VII cases (e.g., by reducing ability to rely solely on comparison of percentages of protected group members in one job category versus another category) and make it easier for employers to counter evidence of adverse impact. "Instead of proving the 'business necessity' of its practice, the employer need only produce evidence that its practice 'serves, in a significant way, the legitimate business goals of the employer.' The burden of showing that the practice was not justified by business reasons then rests on the plaintiff" (e.g., by showing that alternative procedures with less adverse impact were available and would serve the same purpose (cf. Potter, 1989); 1991 Civil Rights Act intended to overturn portions of this ruling.
REFERENCES
Arvey, R. D. (1979). Fairness in selecting employees. Reading, MA: Addison‑Wesley.
Cascio, W. F. (1989). Managing human resources: Productivity, quality of work life, profits (2nd ed.). New York: McGraw‑Hill.
Gatewood, R. D., & Feild, H. S. (1990). Human resource selection (2nd ed.). Chicago, IL: Dryden Press.
Gatewood, R. D., & Feild, H. S. (1987). Human resource selection. Chicago, IL: Dryden Press.
Kleiman, L. S., & Faley, R. H. (1988). Voluntary affirmative action and preferential treatment: Legal and research implications. Personnel
	Psychology, 41, 481‑496.
Noe, R. A., Hollenbeck, J. R., Gerhart, B., & Wright, P. M. (1994). Human resource management: Gaining a competitive advantage. Burr
	Ridge, IL: Irwin.
Potter, E. E. (1989). Supreme Court's Wards Cove Packing decision redefines the adverse impact theory under Title VII. The
	Industrial‑Organizational Psychologist, 27(1), 25‑31.