1 Chapter 2: LEGAL RIGHTS AND RESPONSIBILITIES (Laws Governing the Workplace) 2 Paradoxes about working for the public sector and legal rights · How and when do we give up personal rights in public employment? · Must balance three elements · Employee rights · Employer needs · Policy dictates (governmental needs) In this chapter on Legal Rights and Responsibilities, we are essentially covering laws governing the workplace, of course focusing on the public sector arena. The introduction points out the particularly important paradoxes of living in a democracy in which we value our personal rights, and yet we must yield up or narrow many of those rights in employment situations. This paradox is founded on the underlying principle that public law is trying to balance three elements: the needs of employers, the needs of employees, and the interests of government in pursuing public policy. The entire chapter looks at how these three elements—employees, employers, and policy dictates—are balanced in a wide variety of areas. On one hand, the balancing that is achieved is a magnificent monument to rationality at its best, because the legal system does an extraordinary job of ensuring fairness for employees, employers, and the implementation of policy. It also allows for varying the balance to suit different issues, to evolve over time, and to consider fact-specific situations. Yet on the other hand, public law can be frustrating too, because the balancing act does vary from area to area, does vary constantly over time, and predictability in fact-specific situations is sometimes in doubt until situations are legally challenged and litigated. Thus, public law can be very challenging and frustrating for public managers. As the book points out, managers must embrace the law to avoid the law. This chapter is the primary means that the MPA program uses to ensure that managers are both informed and relatively comfortable dealing with this challenging aspect of management. 3 Not all employment requirements stem directly from laws… Many issues are not covered by laws, but rather by collective bargaining rules and agency guidelines which are nearly as firm An interesting note is that much of what constrains employers is not in the law itself, but in civil service rules and tenure systems. Such rules are considered to be freely adopted by governments or individual agencies, and in most cases either have the weight of law, or at least a very strong legal weight in litigation and provide a weapon that can be used when individuals and unions seek protection of employee rights. Thus many of the generalizations in the chapter are based on common practices articulated in rules, rather than specific laws themselves. A prime example of this is in discipline, where civil service systems constrain agencies to act through specific procedures which must be followed scrupulously. Governments set up the legal framework, it is further articulated in collective barg.

1. 1
Chapter 2: LEGAL RIGHTS AND RESPONSIBILITIES
(Laws Governing the Workplace)
2
Paradoxes about working for the public sector and legal rights
· How and when do we give up personal rights in public
employment?
· Must balance three elements
· Employee rights
· Employer needs
· Policy dictates (governmental needs)
In this chapter on Legal Rights and Responsibilities, we are
essentially covering laws governing the workplace, of course
focusing on the public sector arena. The introduction points out
the particularly important paradoxes of living in a democracy in
which we value our personal rights, and yet we must yield up or
narrow many of those rights in employment situations. This
paradox is founded on the underlying principle that public law
is trying to balance three elements: the needs of employers, the
needs of employees, and the interests of government in pursuing
public policy. The entire chapter looks at how these three
elements—employees, employers, and policy dictates—are
balanced in a wide variety of areas. On one hand, the balancing
that is achieved is a magnificent monument to rationality at its
best, because the legal system does an extraordinary job of
ensuring fairness for employees, employers, and the

2. implementation of policy. It also allows for varying the balance
to suit different issues, to evolve over time, and to consider
fact-specific situations. Yet on the other hand, public law can
be frustrating too, because the balancing act does vary from
area to area, does vary constantly over time, and predictability
in fact-specific situations is sometimes in doubt until situations
are legally challenged and litigated. Thus, public law can be
very challenging and frustrating for public managers. As the
book points out, managers must embrace the law to avoid the
law. This chapter is the primary means that the MPA program
uses to ensure that managers are both informed and relatively
comfortable dealing with this challenging aspect of
management.
3
Not all employment requirements stem directly from laws…
Many issues are not covered by laws, but rather by collective
bargaining rules and agency guidelines which are nearly as firm
An interesting note is that much of what constrains employers is
not in the law itself, but in civil service rules and tenure
systems. Such rules are considered to be freely adopted by
governments or individual agencies, and in most cases either
have the weight of law, or at least a very strong legal weight in
litigation and provide a weapon that can be used when
individuals and unions seek protection of employee rights. Thus
many of the generalizations in the chapter are based on common
practices articulated in rules, rather than specific laws
themselves. A prime example of this is in discipline, where civil
service systems constrain agencies to act through specific
procedures which must be followed scrupulously. Governments
set up the legal framework, it is further articulated in collective
bargaining rules where applicable, and this is articulated in
detail in agency rules.
4
The foundations of employment law… Common law versus

3. civil law systems
This section on the foundation of employment law provides
some additional background on the legal system.
The distinction between common law and civil law systems
which are the two dominant legal systems is provided. A
common law system, of which the U.S. and UK are considered
examples, assumes that laws are generic and principle-based, so
that the facts of cases are primarily determined by the facts in
judicial case law. As important cases are decided, they become
precedents, and the body of precedents articulates the
legislatively-enacted law. Civil law systems assume that laws
will be as highly articulated as possible, and that administrative
rule making is an extension of the legal process. France and
Germany are famous civil law systems. Two observations
apply. First, most experts agree that today most American law
making has many comprehensive aspects—consider the many
laws that run into hundreds of pages and are really very
comprehensive, so our system is in fact a hybrid of common law
and civil law systems. Yet we use and value the judicial
precedential system to articulate borderline fact-specific cases.
Second, legislatures often purposely structure some policy
domains to be more based on common law principles than civil
law system principles. Despite complaints from many about
inviting litigation, such an approach does have a powerful logic.
A prominent example is environmental legislation in which the
Environmental Protection Agency has vast discretion to decide
what is hazardous and at what levels, and all new decisions are
invariably tested in court. This common law approach does
provide both flexibility to change rules over time, and at the
same time, an “open-air” process to ensure fairness.
5
State level structures
California and New Jersey

4. The federal system is replicated in most states. For example, in
California there are 58 state-level trial courts, called Superior
Courts to distinguish them from local government courts. In
other words, there is a Superior Count in each county. There are
six courts of appeals, and a state-level supreme court. In New
Jersey, there is the same system, even though the names applied
are slightly different. The inferior courts are the municipal
courts, county courts are the primary trial courts, superior
courts are the appeals-level courts and, again, there is a single
state supreme court.
6
The foundations of employment law… Judicial structure.
At the federal level, there are 90 district trial courts plus
territorial courts and a special tax court making a total of 94
federal district courts, and twelve circuit courts plus a federal
circuit court that hears specialized governmental cases. Of
course there is only one Supreme Court.
7
The foundations of employment law… Legal terms
The common-law is built on the doctrine of Stare
Decisis ("stand by decided matters").
[Article 6] This Constitution, and the laws of the United
States which shall be made in pursuance thereof; and all treaties
made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land; and the judges in
every state shall be bound thereby, anything in the Constitution
or laws of any State to the contrary notwithstanding.
But…
[10th Amendment ] The powers not delegated to the United

5. States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
Let’s cover three terms before discussing specific human
resource laws.
· Binding versus persuasive precedents
· Fact specific questions
· Federal preemption
Binding versus persuasive precedent. As stated before,
precedents are important in common law systems because they
act as relatively binding rules or quasi laws. That is, how will
the facts be interpreted, first very broadly by law and then more
narrowly by precedent. Not all precedents are equal. Of course
all relevant supreme court decisions are absolutely binding. But
supreme courts do not set all precedents because they have
chosen not to rule in an area or the issue has simply failed to
reach that level. Precedents that are set in one’s own district or
appeals court area are binding; those that apply but are not in
one’s own district or appeals court are merely persuasive.
While courts generally honor persuasive decisions in principle,
they frequently have slightly different facts and thus decisions
often seem at odds, and in rare instances, comparable cases are
decided in fundamentally different ways. When this happens,
new cases are ripe for appeal to a higher court.
Fact-specific issues. When the law and precedent is settled, then
it is a matter of facts. A fact-specific case may argue about
whether certain facts are true and/or there are mitigating facts.
Yet at the most basic level, not everything is settled by law and
precedent, which is the reason for judges and juries. The
introduction and use of some facts is often discretionary and
based on reasonableness. This responsibility for providing
guidelines about the use of facts is shared by agencies who

6. articulate rules and working procedures to guide agency actions.
As with persuasive precedents, courts tend to honor agencies’
decisions and try to give deference when agencies are clearly
acting within their sphere and with competence. However,
courts take their role of review seriously, especially when
agencies may be perceived to be acting beyond their legal
scope, violating their own rules, or simply being inconsistent in
rule application regarding the allowability of facts.
Preemption. Preemption is when a higher level of government
can abrogate the laws of another when there are contradictions
or inconsistencies. The Supremacy Clause of the U.S.
Constitution allows it in specific areas, and it reads: “This
Constitution, and the laws of the United States which shall be
made in pursuance thereof; and all treaties made, or which shall
be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every state shall be
bound thereby, anything in the Constitution or laws of any State
to the contrary notwithstanding.” In the federal case,
preemption is relatively clear in the relatively narrow policy
areas actually stipulated for the federal government—defense,
monetary policy, bankruptcy, and foreign relations. However
much current legislative activity is essentially leveraged from
the commerce clause, which essentially has morphed into the
right to pass common-good legislation. For example legislation
on occupational safety, age discrimination, and disability are
not directly based in the Constitution, as is civil rights
legislation. Thus preemption becomes more contentious. The
Supreme Court has generally allowed preemption in non-
Constitutionally based areas, but only if the legislation
unequivocally expresses its intent to do so. Not that state
constitutions invariably have similar clauses preemption clauses
with regard to local governments, and these clauses are usually
stronger because state governments create local governments.
8
The employment relationship

7. · At-will employment
· Exceptions: civil rights, public employees as state actors, civil
service systems
At-will employment is the predominant relationship in
American businesses. In at-will situations, employers enjoy the
unilateral right to terminate employees without cause. All
organizations are constrained by civil rights legislation by
setting aside classes of individuals who have special protection
from at-will policies that would target them specifically because
of race, ethnicity, gender, etc. Importantly, public agencies
have two additional exceptions. The first exception is based on
the fact that public employees are considered state actors, and
therefore come under federal and state provisions, especially
due process rules affecting not only discipline, but hiring,
promotion and a host of other HR processes. Second, most
federal, state and local governments have committed to
wholesale civil service systems which are based on “with-
cause” protocols for discipline, requiring demonstrated cause
before taking action. Such systems are embedded in law.
However, while these systems were nearly universal at all but
the most executive ranks, there has been some retreat from this
ubiquity as pointed out earlier in the cases of the states of
Georgia and Arizona, some federal departments, and widespread
extension of at-will policies for senior managers.
9
Balancing Employer, Employee, and Societal
Interests…Procedural due process
Cleveland Board of Education v. Loudermill and informally
called Loudermill hearings (and Loudermill letters)
[Message from supervisor to manager: We have warned Bill not
to be late and to call in on a timely basis orally, in writing, and
in a reprimand that he would be fired if it happened yet again.
It has. Today Bill was absent and did not send me a message

8. until well after he was due at work. As a school bus driver, this
meant that children waited in freezing conditions for over an
hour, putting them at danger for frostbite. As we discussed, I
recommend that you immediately suspend him while you
prepare the paperwork for termination. His conduct has been
inexcusable and he was warned.]
----
Next day after the employee returned to work and was
immediately sent to the manager--
Manager to employee about to be fired: We warned you not to
be late for work verbally several times. Then we put it in
writing as a written reprimand, and then as a written warning
that you would be terminated if you failed to show up on time
and give timely notification if late. Because of your absence
yesterday and late notification of this absence, school children
waited in the subfreezing cold for over an hour while we could
get a replacement. You are hereby put on administrative leave.
Unless you have powerful and documented mitigating evidence,
we will process your termination this week.
School bus driver (Bill): I am sorry that I did not call in
yesterday but I was in a bad accident while coming to work. I
was broadsided by another car and taken to the hospital in an
ambulance because I suffered from a concussion, severe
bruising, and whiplash. Although I did not have broken bones,
the medics were not sure since my car was totaled. I called
from the emergency room to notify my supervisor, but the call
went to his messages and so I do not know when he picked up
the message. I have the hospital intake forms and other
information, as well. Although I did not feel well, I came to
work today on time and ready to perform my duties.
Manager: Thank you for this information; I am sorry to hear of
your accident and injuries. We will proceed with the
administrative leave, without bias, for the rest of this week so

9. that I can further investigate. This will also give you time to
recover from the accident and settle your affairs from the
accident. If the facts as you have presented them hold up, I
assume we will neither terminate or reprimand you.
Procedural due process. Once it is established that public
employees have Constitutional property rights, then the
procedures to protect those rights become paramount. An
important example is in firing. Can one fire someone first, and
then justify it later, and if wrong, reinstate the person? This
issue focuses on the use of pre and post determination hearings.
A predetermination hearing puts a heavy weight on managers
and the organization. However, the courts have clearly ruled
that predetermination hearings or in some cases just timely
notifications are necessary before terminating an employee as
articulated in Cleveland Board of Education v. Loudermill and
informally called Loudermill hearings. The Court reasoned that
the stakes are too high for the employee and the difficulty of
getting one’s job back is too tilted toward the employer. Note
that Loudermill hearings are called Skelly hearings in
California because that case preceded Loudermill. But what if
the employee did something really egregious, and necessity
demands immediate removal? That is when administrative leave
is used to give time for the procedural requirements to catch up
with business necessity. In practice, employers rarely alter their
decisions at the predetermination hearing. Instead, they
routinely use it to offer employees the option to resign and
avoid being discharged. There is a vignette on this slide that
you can read at your leisure to illustrate the process. The
vignette provides an example of where the Loudermill hearing
brought important facts to light; in the realistic scenario, Bill
may not be an ideal employee but firing him for this instanceat
this time is almost certainly going to be overturned, and the
school district is going to look heartless as well. Note that
predetermination hearings are generally only required for
dismissals under Constitutional law reasoning, but many

10. jurisdictions extend the same procedure to other substantial
adverse actions through statute or collective bargaining.
Those most senior in organizations may not enjoy for-cause
protection and may be subject to immediate dismissal. However,
they may enjoy the liberty right to a name-clearing hearing.
Such hearings provide an opportunity to persons who feel that
substantially stigmatizing facts were inappropriately used in
their dismissal. A name-clearing allows their side to be heard
publicly, even though they generally cannot overturn the at-will
decision. This right is generally sufficient to curb city and
county legislators from making poorly documented statements
about the reasons for dismissal of city or county managers.
10
Balancing Employer, Employee, and Societal Interests…
Adverse Action
Adverse action. Adverse action refers to suspensions, salary
reductions, demotions, and terminations. Generally speaking,
the following are not adverse actions unless so defined by
collective bargaining agreements: reprimands, transfers,
alteration of duties, changes in schedule, and denial of
promotion. Probationary employees are essentially at-will
employees, and enjoy very little due process protection. When
adverse action is based on the poor performance of
nonprobationary employees, they must be notified of
deficiencies, provided an explanation, given remedial
assistance, and allowed time to improve. Certainly this is time-
consuming and often frustrating. Nonetheless, it can be done by
documenting performance, consultation, and lack of progress.
The primary problem is the lack of willingness of many
managers to write up cases of mistakes, major errors, or sloppy
work as the year progresses and to consistently give tough but
honest annual evaluations. Adverse action for serious
misconduct, such as inebriation on the job, is faster and

11. generally requires the coordination with a senior manager
and/or the personnel department, and in which a hearing is
offered. Note that adverse actions other than termination
frequently automatically go into effect and that the hearing is
only triggered by an affirmative employee request.
11
Balancing Employer, Employee, and Societal
Interests…Freedom of speech
Freedom of speech. Private sector employees give up most free
speech rights when working for an organization, and while
public employees certainly do not give up all free speech rights,
there are significant restrictions. The general rule established in
Pickering v. Board of Education is that public statements must
be of general public interest, not managerial policy.
Functionally, public employees can speak out on the policy
issue of providing monies for their agencies all the time with
only modest fear of recourse. However, employees need to be
extremely cautious about criticizing management practices in
the public domain, even when sloppy and expensive, as upheld
in Connick v. Myers. Such speech is considered disruptive and
subject to adverse action. Only when the practices are clearly
illegal do they enjoy rights under Whistleblower statutes.
However, whistleblower statutes are notoriously weak at
protecting whistleblowers.
12
Balancing Employer, Employee, and Societal
Interests…Political activity and affiliation
Boss Tweed used political standards for administrative hiring as
a part of the infamous Tammany Hall.
Political activity and affiliation. Political activity was restricted
for public employees in order to protect them from political
intervention. Boss Tweed was famous for his numerous ways of
manipulating public employees to work for his successful
political machine. The Hatch Acts of 1939 and 1940 strictly

12. controlled political activity and affiliation to keep employees
from being manipulated or from employees using their positions
inappropriately. It was loosened in the Federal Employees
Political Activities Act of 1993. Even those in at-will
appointments cannot be terminated or subject to other adverse
action strictly for political affiliation, unless the position is
clearly policy making or confidential. A well-known example
of where this is that of U.S. attorneys and non-elected district
attorneys who may not generally be fired for party affiliation
outside the election cycle when wholesale reappointments are
made.
13
Balancing Employer, Employee, and Societal
Interests…Compensation
Compensation. Compensation is covered by the 1938 Fair Labor
Standards Act (FLSA), and the 1963 Equal Pay Act. Public
pensions are not protected by law, but there have not been
conditions making this necessary until recently. As public
budget deficits grow and structural deficits become more
chronic, pension reform will become a greater issue and
legislative activity may occur in this area at the federal and
state levels.
14
Balancing Employer, Employee, and Societal Interests…Safety
and health
Safety and health. The primary statute in this area is the 1970
Occupational Safety and Health Act which is administered by
the Occupational Safety and Health Administration or OSHA.
While protections are afforded, the Act does not provide the
right to sue. Instead, remedies are afforded under worker’s
compensation acts. All governments provide core workers with
health insurance which they do by statute. However, parttime,
temporary and even term employees may not be provided health
coverage, and this may be a substantial number of employees in

13. some agencies. The extent of the coverage has often been quite
broad and superior to standard private sector programs.
However, these benefits are also under increasing fire during
the Great Recession and may be legislatively curtailed over
time. The important Family and Medical Leave Act of 1993 and
as amended, provides extensive coverage for unpaid leave for
childbirth, adoption, or illness of a family member. A state-
level version is the California Family Rights Act (CFRA).
Examples of extensions of rights under CFRA include 4 months
unpaid leave for pregnancy rather than 12 weeks, and the right
to use unpaid leave for domestic partners. Other states have
similar statutes, but often not as generous as California, such as
the New York Family and Medical Leave Act.
15
Balancing Employer, Employee, and Societal
Interests…Individual liability
Those commonly covered by absolute immunity:
Individual Liability. Select employees in policy making and
judicial roles have absolute immunity in their job capacities so
that they are not constrained or “chilled” in their duties. Such
public sector workers include judges, prosecutors, political
executives, and legislators. Of course illegal activities such as
sexual harassment or bribery void absolute immunity, even for
judges and legislators. Qualified immunity is available to
almost all public workers in state and federal government, while
performing their duties conscientiously; local government
employees to not enjoy official immunity. However, in practical
terms, almost all suits are routinely converted into suits against
the agency for whom the public servant works. Some
jurisdictions do not cover employees convicted of egregious
behavior leading to criminal convictions.
16
Privacy Issues…Searches

14. Searches. Generally speaking, public employees only enjoy
privacy at work in terms of what are reasonable expectations.
Those expectations can be curbed substantially by prior
notification that email and agency space is open to inspection.
Searches of persons and private property such as purses and
briefcases are normally strictly limited to well-established
security issues.
17
Privacy Issues…
Private sector has more leeway…
It is more constrained in the public sector…
Testing for alcohol and drug use. The general rule is that
alcohol and drug testing must be for cause. The likely causes
are: reasonable suspicion, postaccident investigation,
rehabilitation counseling, job screening, highly sensitive
positions such as top security clearance holders, and safety-
sensitive positions such as air traffic controllers, police, fire,
bus drivers. While the standards are not uniform, broad testing
for a drug-free environment is generally not allowed in the
public sector as a Constitutional invasion of privacy.
18
Privacy Issues…
Grooming and dress codes. Rules limiting facial hair are often
allowed in public safety, but care must be used to ensure that
consistency is maintained. Dress codes are very difficult to
enforce, and must be tied to reasonable standards and job
relatedness.
19
Privacy Issues…
Preemployment investigations

15. Postemployment references.
Preemployment Investigations: All employment inquiries must
be job related. For example, it is inappropriate to ask in an
interview if someone has a spouse, child or car. One can ask if
they will have any difficulties in relocating, meeting the hours
for the job, or challenges in getting to the place of employment.
For all intents-and purposes, polygraph tests are out. Most
personality type tests need to be carefully and professionally
vetted for job relatedness and validity but may be of use in
some high-volume jobs, especially in public safety. Credit
investigations may be requested, and an adverse action in hiring
must result in a copy of the report going to the applicant. It is
illegal to take action against an employee whose wages have
been garnished. In most states, it is not legal to ask about
arrests but it is legal to ask about convictions.‫ردص‬ ‫كيلع‬ ‫مكح‬
Postemployment References. Note that slander is spoken
defamation and libel is written defamation. Defamation cases
against past employers is overblown as a concern as such cases
are exceedingly rare. The big question prospective employers
want to know is: would you rehire the applicant? Answering
this question honestly is not defamatory. In any case, almost all
agencies require the standard verification of facts: rank, time in
employment and verification of salary range.
20
Discrimination
· Antidiscrimination laws
· Title VII of Civil Rights Act of 1964
· Age Discrimination in Employment Act (ADEA)
· American with Disabilities Act (ADA)
The three big antidiscrimination laws are Title VII of Civil

16. Rights Act of 1964, Age Discrimination in Employment Act,
and the Americans with Disabilities Act. In sum, governments
may not discriminate against employees on the basis of race,
color, national origin, religion, gender, age, and disability.
Other federal and state laws expand these categories such as
married status, political affiliation, military discharge status,
and physical appearance. Overall government agencies do
relatively well with minority representation, although Hispanic
representation has failed to keep pace with the increasing
percentage in the labor pool, and proportionate gender
representation in high-level positions is still poor.
21
Discrimination…
· Intentional discrimination
· Retaliation
· Harassment
· Affirmative Action
· Unintentional discrimination
· Age
· Disability
· Religion
Intentional discrimination is also called disparate treatment.
The use of direct evidence may include discriminatory
comments, that are either written or spoken. Indirect evidence
is when there are actions that indicate that bias is more likely
than not. In hiring, when an applicant demonstrates s/he is
qualified but not hired, the employer must show a legitimate
business reason, to which the applicant must convince a hearing

17. officer that the reason was a pretext. This is known as the
McDonnel-Douglas burden shifting approach. To defend
themselves in advance, most agencies require hiring officials to
state authorized reasons as a part of the process, such as
“insufficient credentials to interview” and “less experience than
the selected candidate.” Intentional discrimination in hiring is
rarely proven today.
Retaliation occurs when, after an accusation of discrimination
by a current employee, the employer takes an adverse action.
About 30% of all EEOC claims are retaliation, so it is an
important category. Strategically, it is challenging to employers
because an employee who is underperforming may allege
discrimination before an adverse action occurs. When the
adverse action occurs, the claim of retaliation replaces the claim
of discrimination which may be easier to prove because of time
proximity.
Harassment is being subjected to unwelcomed behavior of
others, usually in reference to sexual comments or behaviors,
but occasionally in reference to age, race, or disability. To
prevail, a litigant has to prove that a pervasive environment
existed, and that the agency failed to rectify the situation. A
single comment, even a blatantly discriminatory comment, is
rarely sufficient evidence of a hostile environment. However,
the consequences are so severe for agencies and the occurrences
are so frequent in relation to sexual harassment, that
governmental agencies have generally been very proactive in
conducting training and being far more proactive in intervention
(called the Ellerth/Faragher affirmative defense). Quid pro quo
sexual harassment cases are when an employee is threatened
with loss of a promotion or their job, if they are unwilling to
provide sexual favors.
Affirmative Action. Affirmative action programs seek to
increase the representation of select groups. Most programs
have been voluntary; in rare cases court-ordered, or involuntary,
programs have been mandated because of severe and protracted
underrepresentation. Today, many affirmative action programs

18. been suspended. For example, a state ban on all forms of
affirmative action was passed in California via Proposition 209
in 1996: "The state shall not discriminate against, or grant
preferential treatment to, any individual or group on the basis of
race, sex, color, ethnicity, or national origin in the operation of
public employment, public education, or public contracting."
Claims about reverse discrimination have become more
commonplace and have been given significant deference in the
courts on the grounds that majorities should not be harmed in
the pursuit of fixing past injustices to minorities. In the recent
case before the Supreme Court,Ricci v. DeStefano, the plaintiffs
prevailed in a reverse discrimination case in which the City of
New Haven threw out a fire fighter test because of fear that they
would be sued by black firefighters, none of whom passed the
test. Essentially the high court held that the city should have
had a better test in the first place, so it would not have to
disqualify the results of those who did well and included an
Hispanic firefighter.
Unintentional discrimination evidence usually relies on the 80%
rule. If qualification rates of protected groups are less than
80% of the highest group, then the selection device is suspect.
However, as just noted, New Haven used the 80% rule to throw
out the results of the promotional test, only to fall prey to
reverse discrimination. Thus agencies need to be very proactive
in managing their applicant pools and in designing their
promotional tests to ensure diversity before the tests are put in
place. Methods such as scoring each group separately, called
race norming, are illegal. One method that continues to pass
muster is banding, in which the top candidates are all
considered essentially equal and subjective assessments of
organizational needs based on fit, representation, and other
factors are determining. This “all-things-being-equal”
approach, it should be pointed out, can be a method to increase
diversity, but improperly used, can as easily aggravate poor
representation too.

19. Age. The ADEA has successfully curbed blatant ageism in the
public sector for the most part, although it is still a concern in
layoffs when expensive older workers might be targeted, but
this is certainly far less than in the private sector.
Disability. Key to the ADA is reasonable accommodation. In
hiring, for example, the appropriate question is whether the
applicant can perform the essential functions of the job with or
without a reasonable accommodation. In other words, the
applicant may be able to perform the job without recourse to an
accommodation. Yet, should they be unable to do the job
without an accommodation, can they do so with a reasonable
accommodation? The operative word here is “reasonable,” as
well as the phrase “essential elements.” Is an accommodation
that costs $1000 reasonable; almost certainly it is. Is an
accommodation that costs $100,000 for a special vehicle
reasonable; probably not. If a disabled applicant can do all
essential elements of the job but only 75% of the nonessential
elements, it would probably be sufficient for a candidate when
applying legal scrutiny. But a job candidate who could only
perform 50% of the essential elements would likely make the
applicant unacceptable to an agency and would likely be
supported in litigation.
Religion. Title VII prohibits religious discrimination and
requires employers to make reasonable accommodations. Again
reasonable accommodation is fact-specific and must be
determined on a case-by-case analysis. Organizations are not
required to compensate workers for time off fulfilling religious
duties, nor are they required to alter work schedules if doing so
is highly burdensome.
22
Conclusion
So there you have a quick synopsis about the laws governing the
human resource management process and workplace. We talked
about the challenges of balancing the needs of employees,

20. employers, and the public good. We reviewed our common law
system and compared it to civil law systems. We briefly
described the American judicial system at the national and state
levels in which there are inferior courts, first level trial courts,
appeals courts, and a supreme court. We looked at at-will and
for-cause employment relationships, extremely important due
process procedures, adverse action, freedom of speech, political
activity by public workers, compensation legislation, safety and
health issues, individual liability, privacy and searches, and
investigations and references. With regard to discrimination, we
looked at the overarching laws, intentional and unintentional
discrimination, retaliation, harassment, affirmative action, age,
disability, and religion. These issues are important for all
managers to understand today. With this legal background in
place, the next chapter can begin the discussion of specific
human resource management processes starting off with
recruitment.