This document provides an overview of common legal issues faced by human resource professionals. It discusses federal laws prohibiting employment discrimination based on protected classes such as race, gender, religion, and disability. The Equal Employment Opportunity Commission enforces anti-discrimination laws and investigates complaints. The document also outlines legal requirements around compliance, safety, military leave, labor relations, employee privacy, and negligence. Key Supreme Court cases that established standards for disparate treatment claims and hostile work environment sexual harassment are also summarized.

1. ©SHRM 2008
LEGAL ISSUES IN HUMAN
RESOURCE MANAGEMENT

2. ©SHRM 2008
Session 1

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PURPOSE
The purpose of this module is to introduce
students to common legal issues faced by HR
professionals.

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EMPLOYMENT DISCRIMINATION
• U.S. employees have legal protections
against employment discrimination at the
state and federal levels. These protections
come from laws (statutes) and from court
cases.
• Protections at the state level vary from
state to state. Even some municipalities
have laws (ordinances) that protect
employees from discrimination.

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EEOC
• In the U.S., the Equal Employment Opportunity
Commission (EEOC) is the main enforcer of
employee civil rights.
• Each year, the EEOC receives thousands of
complaints from employees alleging employment
discrimination.

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EEOC
Once the EEOC receives a complaint, one of three
outcomes may occur:
• The complaint can be dismissed as
unfounded.
If the complaint passes the initial review, the
EEOC can either:
• Have its own attorneys handle the case;
or
• Issue the complainant a Right-to-Sue
letter.

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PROTECTED CLASSES
Protected class: To receive employment
discrimination protection under federal
legislation, an employee must be a member
of a class of individuals intended to receive
protection. Generally, protected classes are
age, race, gender, religion, color, national
origin, disability and ethnicity.

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FEDERAL LAWS
• Civil Rights Act of 1886 (Section 1981)
– Prohibits discrimination on the basis of race, color, national origin,
ethnicity.
• Equal Pay Act of 1963
– Requires employers to pay employees equal pay for equal work
regardless of gender.
• Civil Rights Act of 1964 (Title VII)
– Prohibits discrimination based on race, color, religion, sex (gender), or
national origin.
• Age Discrimination in Employment Act of 1967
– Outlaws discrimination in employment against individuals over 40.
• Rehabilitation Act of 1973
– Prohibits employment discrimination against individuals with
disabilities.

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FEDERAL LAWS
• Pregnancy Discrimination Act of 1975
– Prohibits discrimination based on pregnancy and
childbirth.
• Uniformed Services Employment and
Reemployment Rights Act (USERRA) of 1994
– Grants employees who have served in the military
the right to be reinstated to their employment
without losing benefits.
• Americans with Disabilities Act (ADA) of 1990
– Prohibits discrimination against employees and job
candidates with disabilities and requires employers
to make reasonable accommodations unless they
impose an undue hardship on the employer.

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FEDERAL LAWS
• Civil Rights Act of 1991
– Expanded legal protections to employees;
allows for punitive damages.
• Family and Medical Leave Act (FMLA) of
1993
– Permits 12 weeks of unpaid leave for medical
or family reasons.

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Theories of Employment Discrimination
Under Title VII, there are two main theories of employment
discrimination:
• Disparate treatment: Under this theory, it is alleged that
the employer intentionally discriminated against an
employee (or group of employees) because of his/her
race, color, religion, gender, or national origin.
• Disparate impact: Under this theory, it is alleged that the
employer’s human resource practices systematically
exclude members of a protected class.

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Sexual Harassment
Under Title VII, sexual harassment is a form of sex
(gender) discrimination.
There are two types of sexual harassment:
• Quid Pro Quo (Latin for “this for that”): This type
of sexual harassment occurs when a supervisor
or other authority conveys to a subordinate
(through either words or actions) that he/she
must engage in sexual conduct in order to
advance or to not receive poor treatment.

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Sexual Harassment
• Hostile Work Environment: This type of sexual
harassment occurs when an individual is subjected to
the unwelcome and offensive behavior of others in the
workplace. This may include offensive language,
jokes, gestures, glaring, or displaying offensive
images. This type of harassment typically comes from
co-workers.

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Retaliation
Title VII of the Civil Rights Act makes it unlawful for an employer
to retaliate against an employee by taking an adverse
employment action against a covered individual for engaging
in any protected activity.
Protected activities include such actions as filing a
discrimination complaint, threatening to file a
discrimination complaint or picketing to protest
discrimination.

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Employment At Will vs. Due Process
Most U.S. employees are employees at will. Under
employment at will, an employee can be discharged for
any non-discriminatory reason at any time.
However, some employees are due process employees.
Due process employees are generally unionized and/or
civil servants. This category of employee can be
disciplined (including discharge) only for cause.

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Affirmative Action
Affirmative action programs are implemented as a means to
remedy past discrimination.
Some employers have adopted these programs voluntarily and
others have been required to adopt them by the EEOC or
court order. Some employers might be required to have an
affirmative action program because they are federal
contractors (Executive Order 11246). However, quota
systems are unlawful because they have been found to violate
Title VII.

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Employment Discrimination Defenses
The following are some defenses an employer can use to
defend Title VII cases:
• Bona fide occupational qualification (BFOQ)
• Seniority
• Merit
• Employee misconduct
• Valid selection test

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U.S. Supreme Court Cases
• McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973):
Established the burden-shifting standard for disparate
treatment cases.
• Meritor Savings Bank v Vinson, 477 U.S. 51 (1986): A
hostile work environment due to sexual harassment is a type
of sexual discrimination.
• Sutton v United Airlines, 527 U.S. 471 (1999): Minor
illness/ailments are not disabilities as defined under the
Americans with Disabilities Act.

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Employment Discrimination Review and
Wrap-Up
Many employment discrimination issues we discussed directly
relate to the selection and staffing functions of the
organization. However, employment discrimination can be
found in other types of HR practices.
What laws prevent discrimination in training and
development, compensation and appraisal?
Take the self-assessment quiz.

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Session 2

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OTHER HR-RELATED LEGAL ISSUES
• Compliance
• Safety
• Military Leave
• Labor Relations
• Employee Privacy
• Negligent Hiring
• Negligent Retention
• Negligent Referral

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Compliance
Recordkeeping
• Employers must keep records on employees for a variety
of reasons, including compensation (e.g., payroll records),
appraisals (past performance evaluations), and safety
training.
• Employers with more than 100 employees are required to
file an annual report (EEO-1) that provides a numerical
count of their employees by job category and by ethnicity,
race and gender.

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Safety
• In 1970, the U.S. Congress passed the Occupational Safety
and Health Act. The purpose of this law is to help both
employers and employees reduce on-the-job death and injury.
• The law is administered by the Occupational Safety and
Health Administration (OSHA), a division of the U.S.
Department of Labor.

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Safety
• OSHA provides both guidelines (optional) and
standards (required) for employers.
• Employers can be subject to both scheduled and
random inspections by OSHA.

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Workplace Violence
Employers have a responsibility to make the
workplace as safe as possible. Part of this
responsibility includes taking steps to prevent
workplace violence. The employer who fails to do
so is subject to possible liability.

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Workplace Violence
Some steps employers can take to reduce workplace violence
include:
• Monitoring and security measures (e.g., security guards,
surveillance cameras, identification badges, password-
controlled entry).
• Establishing a zero-tolerance policy on workplace violence.
• Offering employee training on workplace violence avoidance
and alternative dispute resolution tactics.
• Establishing a zero-tolerance policy about being on the
jobsite or performing work duties while under the influence
of illegal drugs or alcohol.

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Military Leave
• Uniformed Services Employment and Reemployment
Rights Act (USERRA) (38 U.S.C. 4301) provides
reemployment rights for veterans and members of the
National Guard and Reserve following qualifying military
service.
– This law also prohibits employer discrimination based
on current or past military service or based on one’s
intent to join the military.

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Military Leave
• Family and Medical Leave Act of 1993: In January 2008,
the Family and Medical Leave Act was amended to
include a provision that states “eligible employee shall be
entitled to a total of 12 workweeks of leave during any 12-
month period . . . because of any qualifying exigency (as
the Secretary shall, by regulation, determine) arising out of
the fact that the spouse, or a son, daughter, or parent of
the employee is on active duty (or has been notified of an
impending call or order to active duty) in the Armed Forces
in support of a contingency operation.”

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Labor Relations
• Labor relations refers to the dealings between
the management of an organization and its
organized labor representative (e.g., unions).
• Unions exist in the public and private sectors.
• The National Labor Relations Board was
created by Congress in 1935 to administer the
National Labor Relations Act, the primary law
governing relations between unions and
employers in the private sector.

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Labor Relations
• The overall rate of unionization in the United States
has been declining for decades.
• Organizations have a duty under federal law to deal
with unions fairly and to bargain in good faith.

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Labor Relations
The National Labor Relations Act (NLRA) prohibits
unfair labor practices, which are defined as
activities by employers that interfere with the right
to unionize by employees.
Examples of unfair labor practices include telling
employees to vote against unionization or
threatening to close a facility if the workplace
becomes unionized.

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Labor Relations
Employers also have protections against unfair labor
practices. For example, the Taft-Hartley Act of 1947
prohibits secondary boycotts and allows states to pass
right-to-work statutes. Under the Taft-Hartley Act,
closed shops (in which employees must be a member
of the union before they are hired) are prohibited.
However, states may allow union shops (in which the
union requires that an employee become a union
member within a certain amount of time – usually 30
or 60 days – of being hired).

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Employee Privacy
Employees have a limited expectation of privacy in the
workplace.
• Email and telephone calls are normally not considered to
be private. However, some states have wiretapping laws
that offer limited protection for employee telephone calls.
• Employees should expect privacy in restrooms and
changing facilities. However, in some sectors, employees
can be monitored for loss prevention.

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Employee Privacy
• The Fourth Amendment of the U.S. Constitution has a
provision on unlawful searches and seizures by the
government. This provision has been interpreted by courts
to mean that governmental workers have special privacy
protections.
• Employers with federal grants and contracts must have a
drug free workplace policy pursuant to the Drug-Free
Workplace Act of 1988. However, drug test results and
other medical records must be handled appropriately and
be consistent both with this act and the Health Insurance
Portability and Accountability Act (HIPAA).

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Negligent Hiring
• Employers have a responsibility to workers, clients,
community and themselves to ensure that
employees do not harm others in the performance
of their work duties.
• Under the legal doctrine of respondeat superior, an
employer might be held civilly liable for the actions
of employees.

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Negligent Hiring
Many employers investigate the backgrounds of their employees
before hiring them. Such practices include:
• Checking references/contacting former employers.
• Conducting a criminal background check.
• Requesting transcripts.
• When appropriate, requesting proof of licensure (e.g.,
license to practice medicine or law, driver’s license).
• Drug testing.

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Negligent Retention
Related to the issue of negligent hiring is negligent
retention. Negligent retention occurs when an
employer does not discharge an employee after the
employer learns (or should have known) that the
employee was a danger to others.

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Negligent Referral
Negligent referral occurs when an employer knows
that a current or former employee poses a threat to
others, but does not pass this information on to the
next employer.

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Employee References
• Giving employee references can pose a difficult
situation for employers. On one hand, employers
do not want to be sued for negligent referral by
subsequent employers. On the other hand,
employers want to avoid former employees bringing
a lawsuit based on discrimination, tortious
interference with contract (i.e., interfering with an
employee’s ability to obtain another job), or
defamation.

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Review and Wrap-Up
Discussion question: What are some important legal trends
affecting HR?
Student evaluation: Quiz on the materials from Sessions 1 & 2.