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Evolution of Employment Law

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The Legal and Ethical Context of Human Resources

Evolution of Employment Law | Legal Context of Discrimination Law | The HR Practitioner View | Privacy and Technology | International HRM | Employee Discipline | Activities

Evolution of Employment Law Back to Top

Regrettably, the evolution of employment law in modern times has largely been a reactive process to abuses and injustices in the workplace. Employment protections that are considered common sense today were not embraced in the past.

Consider the following:

*Wage laws grew out of legislative concerns over the long hours, deplorable working conditions, and low pay that many manufacturing workers routinely faced during the pre-Depression area.

*Workplace safety laws grew out of employers' blatant disregard for workers' safety.

*Equal employment legislation grew out of civil rights inequities that persisted as late as the 1960s and effectively blocked minorities and women from equal opportunities in the workplace.

*Equal pay legislation grew out of gender pay inequities that also existed as late as the 1960s and effectively paid women less than men for the completion of equal work.

*Disability protections grew out of the routine exclusion from the workplace of injured workers and of individuals with disabilities.

*Posting National Labor Relations Act rights grew out of concerns over employees not knowing their rights and basic enforcement procedures, as well as the promotion of statutory compliance by employers and unions. (https://www.federalregister.gov/articles/2011/08/30/2011-21724/notification-of-employee-rights-under-the-national-labor-relations-act#p-629)

It is not clear how employment law will evolve from this point. Some argue that more protections are needed in the workplace, whereas others argue that there is already too much regulation in this area. Whatever ultimately occurs, it is very unlikely that we will ever go back to a pre-1960 society in which large portions of the populace are excluded from participation in the American dream. Today, there are just too many moral, political, and economic pressures that would resist this return.

Laws Affecting Discriminatory Practices

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Legal Context of Discrimination Law Back to Top

Today, the major focus of employment law is on the prevention of discrimination in the workplace. The HR professional must understand and interpret the myriad federal and state employment laws to facilitate organizational compliance.

The HR professional also must understand basic nuances of employment law. For example, there are two classes of federal laws that prohibit discrimination: laws that are broad in scope, such as Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, and laws of limited application that apply to organizations that receive federal funding, such as the Rehabilitation Act of 1974 or executive orders.

Facilitating an organization's compliance, however, is much more difficult than it appears. Organizational activities and actions must be evaluated against broad legal compliance guidelines. Understandably, these legal guidelines do not specifically describe every activity that is discriminatory. Thus, the HR professional must understand and apply these compliance guidelines to everyday organizational activities. The difficulty comes in applying employment law to situations that vary depending both on the individuals involved (who is involved) and the nature of the activity (what was done).

In evaluating what constitutes discrimination, two critical areas for HR professionals to understand are disparate or adverse treatment (discrimination that is unequal and intentional) and adverse impact (discrimination that is unintentional). Disparate treatment can be proven by direct evidence of the intent to discriminate, by circumstantial evidence such as statistical information, or by a combination of direct and statistical evidence.

Adverse impact is more difficult to evaluate. As a general principle of law, adverse impact can best be summarized by the well-known saying, "Ignorance of the law is no excuse." The fact that the discriminatory behavior was unintentional does not necessarily absolve an organization of liability under the law. Adverse impact is proven by applying identical standards to different classes of people and showing through the results that these standards yield substantial differences in employment outcomes. For example, height requirements that are not relevant to the performance of a job could have an adverse impact on one class of people versus another class of people.

At times, others criticize HR professionals as vacillators whenever HR must evaluate the legality of organizational actions. In reality, for HR, the legal context an organization must navigate is a context of nuances that are neither black nor white but are gray. It is these nuances that too often make HR professionals respond with the dreaded, "It depends."

The HR Practitioner View Back to Top

Organizational culture and senior management orientation are two powerful forces that further complicate organizational compliance for the HR professional. The HR professional will not be able to curb or guide organizational activities in a certain direction by simply quoting passages of the law to senior managers or others in the organization. In complying with federal and state laws, the challenge for HR professionals and senior managers is to ensure that the organization stays out of legal trouble as it pursues its business responsibilities. A wise HR professional will understand that organizational culture and senior management orientation merge to create an organization's compliance strategy (an organization's attitude toward complying with the law).

There are various strategies a company can take to comply with employment and privacy laws. The stages in this continuum are obstructionist, defensive, accommodative, and proactive, with obstructionist and proactive being the two extremes.

To take an obstructionist stance

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