Chapter 11 Complying with Workplace Justice Laws LEARNING OBJECTIVES After reading this chapter, students should be able to: • Understand how effective workplace justice policies enhance competitive advantage. • Describe the antidiscrimination laws that dictate how employees should be treated on a day-to-day basis. • Discuss the extent to which employee privacy rights are legally protected. • Explain employee rights regarding unfair discharges. • Discuss what management skills are needed to comply effectively with workplace justice laws. CHAPTER OUTLINE AND LECTURE 11-1 Gaining Competitive Advantage Workplace justice laws are important issues today. This chapter provides an overview of them and some valuable insights into dealing with them. 11-1a Opening Case: Gaining Competitive Advantage at the Marriott Marriott Corporation’s open door policy on guarantee of fair treatment began to lose its effectiveness. People started to bypass the supervisor and/or go directly to court. To solve this problem, the company surveyed employees and focus groups on what their needs were in complaint resolution. Employees wanted a chance to air their concerns before impartial listeners and wanted immediate follow up and assurances of no retribution. A panel made up of peers and managers heard the complaints and used delegated authority to make decisions within 10 working days. Although employees were asked to use the original policy as a first step, they were free to go to the panel for help. It worked! Employees thought the panel was fair and objective. The number of EEO charges dropped by 50 percent the first year and by 83 percent the second year. Morale and cost reductions both improved dramatically. If your college or university is located in a small town, it is likely that no Marriott Hotel exists in the area. Therefore, no one can directly relate to this specific situation. Ask students if they have been treated unfairly as a hotel/motel guest. Ask if, during an overnight stay, they have witnessed an employee being treated unfairly by management. If so, what would the person’s complaint be and how should it be handled? 11-1b Linking Workplace Justice to Competitive Advantage Workplace justice laws deal with the fairness of organizational practices that dictate the day-to-day treatment of employees. Most employees expect fairness: many demand it. Competitive advantage can come from willingly complying with workplace justice laws. Here is how it can occur: • Reducing litigation costs is a huge saver. Consider the cost savings of awards, court costs, legal fees, and managerial and HR professional time losses. • Favorably affecting employee attitudes and behaviors is a goal all companies should reach. Research shows there is a link between workplace justice and organizational commitment/good organizational citizenship. This topic is even more important because of today’s diverse workforce. • Promoting a favorable company image within the community at large is vital to competitive advantage. It can significantly boost a firm’s recruiting efforts, (especially women and minorities), and sales volume. Allow students to debate which of the above will produce the “best” results. Let them justify their reasoning for increased competitive advantage. Is there another way to accomplish this? 11-2 HRM Issues and Practices The three major issues and practices are employment discrimination, privacy rights, and wrongful termination. 11-2a Workplace Justice and Employment Discrimination Managers must be knowledgeable of and skilled in the treatment of employees in these areas: • Sexual harassment is a long-standing problem and is on the rise. These acts of aggression within a company can damage the firm’s competitive position and cause numerous problems for employers. Being exploited sexually is a major intrusion on a worker’s privacy and rights. EEOC guidelines define sexual harassment and stipulate employers’ legal liabilities. In the context of sexual harassment, the term quid pro quo refers to a situation in which an employee or applicant must provide sexual favors in order to be hired, promoted, granted a pay raise, or allowed to keep a job. Employers must avoid situations where employees ask for sexual favors in exchange for something job related. Hostile environments are those in which employees are subjected to unwelcome, intimidating working conditions. Hostile environments must be reduced or eliminated. Reverse sexual harassment occurs when a person is denied an employment opportunity that was given to someone who complied with requests for sexual favors. To prove a case, the challenged behavior must be gender-based and must be severe or abusive. Employers can be held liable even when upper management is unaware of the situation. To deal with sexual harassment, employers should: (1) establish a written policy (2) provide supervisory training that focuses on the legal definition of sexual harassment (3) establish investigative guidelines that maintain employee confidentiality (4) establish a committee composed of both men and women to investigate claims (5) establish a means of detecting unreported instances. • Pregnancy discrimination is a real issue today because 80 percent of women will become pregnant during their careers. Firms should attempt to accommodate the special needs of women that will, in turn, help produce competitive advantage. The Pregnancy Discrimination Act (PDA) says this form of sex discrimination is illegal whether it is pregnancy, childbirth, or related medical conditions. The employer must treat pregnancy as a form of disability. • The Family and Medical Leave Act (FMLA) requires all employers of 50 or more employees to grant workers up to 12 weeks of unpaid leave per year for the care of a newborn child, an ill family member, or their own illness. Although it helps employees, it can be quite costly to employers. Employers should make every effort to comply with the law. • Fetal Protection Policies (FPPs) exclude all women of childbearing age from jobs that could cause potential reproductive hazards. Women are exempted only if they can show proof of surgical sterilization. Fetal protection can hinder job opportunities for many women. Firms must be careful that their FPPs are not discriminatory. This difficult issue has some answers found in Exhibit 11-2. • Discharge and discrimination is another issue affecting more than three million fired employees each year. Many lose their jobs unfairly. A decision to discharge an employee is discriminatory if it is influenced by the employee’s protected group membership. The two most common reasons are employee misconduct and poor performance. To protect themselves, employers must document all claims and should follow a progressive discipline system. See Exhibit 11-3 for provisions to include in this policy. An effective performance appraisal system is crucial. • Layoffs and discrimination is another important issue today. The most frequent legal challenge to layoff decisions is age discrimination against older workers. The firms must be able to justify why they lay off specific individuals rather than another person. They must provide evidence that they considered all other options. Good records and statistical evidence can be used to refute claims. • Early retirement and discrimination must not be coerced, but rather an honest effort to reduce the workforce. Employers can ask early retirees to sign written waivers of their right to sue under the Age Discrimination in Employment Act (ADEA). The waivers, however, must meet minimum standards stipulated by the Older Workers Benefit Protection Act (OWBPA), enacted in 1990. Which of the previous bullets would be the most difficult to deal with or administer? Try to imagine the types of problems that would be associated with it. Let students research the types of businesses or industries that are exempt from each of the above. 11-2b Employee Privacy Rights Practices that employees view as intrusions on their privacy can have damaging effects on competitive advantage. The discussion that follows examines privacy-related issues that are legally regulated: • Information collection and use protects employees and applicants from the use of information that is irrelevant to the employer’s business needs. According to the Privacy Act of 1974, public sector employees must be given access to any information in their files. Prohibiting private sector employees from seeing their own files may create doubts and suspicions. In the private sector, legal constraints in this area stem from the common law of defamation. The release of information maintained by government agencies is regulated by the Freedom of Information Act of 1966. • Employers may be in violation if they conduct an uninvited search of the employee’s property or body. When conducting a search, employers must have a reasonable basis, a set of written guidelines informing the employee of the policy, and take reasonable precautions to prevent an offensive or abusive search. The courts are more likely to rule in favor of employers if searches are conducted in accordance with the company’s written policy. An employer’s behavior in this area is regulated by the common law of intrusion upon seclusion. • Surveillance and monitoring activities track the behavior of employees both on and off the job. Proponents claim tracking serves a legitimate business purpose, especially tracking emails and Internet use. Critics say such practices degrade employees, reduce job satisfaction, and leads to increased turnover. Legally, these actions must meet the standards of the common law doctrine of intrusion upon seclusion and have a legitimate business reason for engaging in them. Several states have enacted anti-surveillance statutes. Check your own state’s laws. • Workplace rules can restrict certain types of employee behaviors. These can take any form as long as they are enforced in a nondiscriminatory manner. No-smoking rules stem from employers wanting to protect the well-being of employees and reducing financial risks. Rules governing romantic relationships may exist in many forms. In the private sector they are legal as long as a reasonable person would not consider the rule outrageous. An employer may have a legal right to regulate employee behavior outside the workplace if the misconduct and the job have some relationship and the continued employment of the guilty person would have a disruptive impact on the workforce. Which of the above privacy-related issues would have the most potentially damaging effects on competitive advantage if administered inappropriately? What is your reasoning? Which types of businesses or industries would be most affected by each of the issues? Have students relate their experiences in this area. 11-2c Wrongful Termination and Employment-at-Will The employment-at-will doctrine allows employers to freely discharge their employees for any reason, even an unfair one, unless the discharge is limited by contract or by state or federal statutes. Several statutes prohibit certain types of unfair or wrongful termination—see Exhibit 11-5. Exceptions to the employment-at-will doctrine exist. Many states prohibit employers from discharging an employee if that discharge violates a public policy, such as serving on jury duty, or for refusing to perform an act condemned by public policy. The implied contract exception may declare that an employee’s job tenure is long-term and that discharge will occur only with good cause. Employers must be aware that they may be guilty of wrongful discharge when they violate good faith and fair dealing laws. An employer may take one of two approaches to minimize the chances of losing a wrongful termination suit. One, the firm may avoid making any statements that promise long-term employment. Second, companies can ensure that their discipline and discharge practices are fair in the first place and the fairness of any discharge can be proven through documentation. Ask students to research employment-at-will on the Internet. Let them bring specific examples of wrongful discharge to class and be ready to explain why each was inappropriate. 11-3 The Manager’s Guide Managers and HR professionals both have responsibilities in the area of workplace justice. They must be trained in both knowledge and skills to see that the corporate culture is conducive to justice. 11-3a Workplace Justice and the Manager’s Job Although line managers neither make policy nor establish procedures for ensuring workplace justice, their role is nevertheless vital. You will see this role unfold here: • Line managers must communicate workplace policies and procedures. They must teach the company’s code of conduct and the consequences for violating them. • Line managers should try to create a work environment in which workers are motivated to voluntarily follow the rules. Managers can be good examples and act fairly. • Line managers should learn to deal effectively with policy violations, i.e., workers who do not follow workplace rules. This role may be the most difficult of all. 11-3b How the HRM Department Can Help Once fair and just policies are designed, the HR professional plays three roles: • The implementation of discipline and discharge policies is important. The code of conduct can be conveyed during orientation and training. HR departments can maintain records to review what will support the termination. • Developing a conflict resolution mechanism can minimize negative effects of workplace justice-related disputes. This way disputes can often be resolved without having to go to court. Most companies attempt to resolve disputes through an open-door policy. They also use peer review panels, mediation, arbitration, or an ombudsman. • Assisting managers with workplace justice-related issues provides valuable input into the process. It may take the form of advice or a training program. 11-3c HRM Skill-Building for Managers Managers need several skills to properly handle workplace justice-related responsibilities. They include: • Conducting a disciplinary investigation when a possible violation of company rules exist should proceed by getting the facts, reviewing applicable rules, meeting with the employee, and deciding what kind of discipline, if any, to recommend, and providing proper documentation. • Investigating claims of sexual harassment is important for employers who can be held liable for acts of their employees if the manager is aware or should have been aware of the behavior, yet fails to take appropriate action. The steps to take are (1) determine if the alleged behavior has actually occurred (2) determine if it could be legally construed as sexual harassment (3) determine the appropriate action to take. • Conducting a disciplinary conference is the first step in the process—the oral warning. Its purpose is to correct, rather than punish, the behavior(s). The employee needs to understand what he or she has done wrong, why the behavior must be corrected, and how the employee can correct the behavior. Plan ahead to conduct a mock disciplinary conference during class. Assign two students as violators of the same offense, one person as the line manager, and one as the HR professional. Actually go through the 13 steps of conducting a disciplinary conference. Create an offense of breaking some rule that is moderately significant. Let the rest of the class comment on how the conference was handled. KEY TERMS Due process: Occurs when employees are informed of the charges against them and are given an opportunity to defend themselves. Employment-at-will: A legal doctrine stating that employers may discharge their employees for any reason, even an unfair one, unless the discharge is limited by contract or by federal or state statutes. Family and Medical Leave Act (FMLA): A law stating that firms employing 50 or more workers must grant employees up to 12 weeks of unpaid leave per year for the care of a newborn child, an ill family member, or their own illness. Fetal protection policies (FPPs): Organizational policies that exclude women of childbearing age from jobs with potential reproductive hazards. Fourth Amendment: Constitutional amendment granting privacy rights to public sector employees. Freedom of Information Act of 1966: A law designed to make most government records available to the public. Good faith and fair dealing: A common law prohibiting discharges that are particularly repugnant or unfair. Hostile environment: A form of sexual harassment in which victims are subjected to unwelcome, hostile, and intimidating working conditions. Implied contract: An unwritten contractual agreement. Intrusion upon seclusion: A common law doctrine stating that a person’s privacy rights are violated when the intrusion upon his or her private concerns would be considered highly offensive to a reasonable person. Just cause: The reason for an employer’s action is fair. Monitoring: Tracking employee behavior inside the workplace. Older Workers Benefit Protection Act (OWBPA): A law that regulates written waivers of ADEA rights signed by early retirees. Privacy Act: A law giving public-sector employees access to any information in their files. Progressive discipline system: A system in which discipline is enforced in increasingly severe steps. Public policy: A doctrine that serves society and, if violated, will cause harm to society. Quid pro quo: A form of sexual harassment in which victims are required to provide sexual favors in order to be hired, promoted, granted a pay raise, or allowed to keep their job. Sexual harassment: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature. Surveillance: Tracking employee behavior outside the workplace. Workplace justice laws: Laws that regulate the day-to-day treatment of employees. Wrongful termination: An unlawful discharge. REVIEW QUESTIONS 1. When a person is denied an employment opportunity that was given to someone who complied with requests for sexual favors, it is called a. quid pro quo harassment. b. hostile environment harassment. c. reverse sexual harassment. d. none of the above; it is not a form of sexual harassment. Answer: c Rationale: Reverse sexual harassment occurs when a person is denied an employment opportunity that was given to someone who complied with requests for sexual favors.. 2. The Family and Medical Leave Act (FMLA) grants eligible workers a. up to 12 weeks of unpaid leave per year. b. up to 20 weeks of unpaid leave per year. c. up to 12 weeks of paid leave per year. d. up to 20 weeks of paid leave per year. Answer: a Rationale: The Family and Medical Leave Act (FMLA) of 1993 requires all employers of 50 or more employees to grant workers up to 12 weeks of unpaid leave per year for the care of a newborn child, an ill family member, or their own illness. Reference section: 11-2a 3. Which group of employees is exempted from FMLA coverage? a. men b. people over 55 c. managers d. those with the highest earnings Answer: d Rationale: An employer can exempt an employee if that individual is one of their highest paid employees (upper 10 percent) and his or her absence will cause the employer serious financial loss. 4. Which of the following laws regulates the content of waivers signed by employees when taking an early retirement? a. Age Discrimination in Employment Act b. Waiver Rights Act c. Older Workers Benefit Protection Act d. Early Retirement Act Answer: c Rationale: A firm can avoid charges of age discrimination by older workers by asking early retirees to sign written waivers of their right to sue under the Age Discrimination in Employment Act (ADEA). The waivers, however, must meet minimum standards stipulated by the Older Workers Benefit Protection Act (OWBPA), enacted in 1990. 5. Which of the following provisions is included in the Privacy Act of 1974? Employees have the right to a. determine what information is in their personnel files. b. review the information in their personnel files. c. correct erroneous information in their personnel files. d. all of the above. Answer: d Rationale: According to the Privacy Act of 1974, public sector employees must be given access to any information in their files. Specifically, the act states that employees have the right to: • Determine what information is being kept on them by their employers. • Review that information. • Correct erroneous information. • Prevent the information from being used for a purpose other than that for which it was collected. 6. In the Kmart case regarding the cashier who was accused of stealing $20, the court ruled in favor of a. Kmart because it had a reasonable basis for its search. b. Kmart because the search was conducted in private by a person of the same sex. c. the cashier because the search was embarrassing and humiliating. d. the cashier because she was wrongly accused of theft. Answer: c Rationale: To be lawful, an employer’s search must meet three criteria: • A company must have a reasonable basis for conducting the search. • A set of written guidelines, issued by the company, should inform employees of its search policy. • The person conducting the search should take all reasonable precautions to ensure the search is not conducted offensively or abusively. In the Kmart case, the court ruled that the search was abusive because forcing the employee to disrobe in front of a customer was embarrassing and humiliating and caused the employee great emotional distress. 7. In the public sector, rules regulating romantic relationships must comply with the __________ Amendment. a. First b. Fourth c. Fifth d. Fourteenth Answer: b Rationale: The laws pertaining to this issue vary for public and private sector employees. In the public sector, rules regulating romantic relationships must comply with the Fourth Amendment, which guarantees public sector employees a right to privacy. 8. A worker is fired because she refused to steal important documents from a competitor. What common law would the worker use as a basis for a wrongful discharge suit? a. contract theory b. public policy c. good faith and fair dealing d. none of the above Answer: b Rationale: A public policy is any doctrine that serves the needs of society; if the public policy is violated, society will suffer harm. Legislation, administrative rules, judicial decisions, or professional codes of ethics may generate such policies. 9. A salesperson was unjustly fired in order to prevent the payment of an upcoming commission. What common law would the worker use as a basis for a wrongful discharge suit? a. contract theory b. public policy c. good faith and fair dealing d. none of the above Answer: c Rationale: When an employee feels he or she has been discharged unfairly, but there is no implied contract between the employer and the employee, the employee may still be able to present a viable case of wrongful termination in some states. Such a case would depend on the argument that all contracts (even those with no promise of long-term employment) contain an implied promise of good faith and fair dealing. Reference section: 11-2c 10. Which of the following statements regarding smokers in the workplace is false? a. Smokers are not a protected group under federal antidiscrimination law. b. Courts do not consider workplace smoking restrictions as violations of employee privacy rights. c. Federal law makes it illegal for companies to refuse to hire applicants who smoke. d. A number of states have passed legislation that legally bans smoking in the workplace. Answer: c Rationale: Smokers are not a protected group and therefore are not eligible for protection under federal antidiscrimination laws. Moreover, courts do not consider workplace smoking restrictions as violations of employees’ privacy rights. Smokers’ greatest protection comes from state laws that make it illegal for companies to refuse to hire an applicant because he or she smokes. Thirty states and the District of Columbia have passed such a law. DISCUSSION QUESTIONS 1. Define workplace justice. Describe three ways in which the establishment of workplace justice contributes to an organization’s competitive advantage. • Workplace justice laws deal with the fairness of organizational practices that dictate the day-to-day treatment of employees. • Workplace justice contributes to an organization’s competitive advantage by: ○ Reducing litigation costs ○ Favorably affecting employee attitudes and behaviors ○ Promoting a favorable company image 2. What is sexual harassment? Under what conditions would an employer be liable for sexual harassment of its employees? • Sexual harassment—unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature. • The employer is responsible for the acts of its agents and supervisory employees whether the employer knows or should have known of their occurrence. • The employer is responsible for the acts of sexual harassment committed by coworkers if the employer knows or should have known of the conduct, unless it can show that it took immediate and appropriate action. • An employer is responsible for the acts of nonemployees in the workplace, if ○ It knows or should have known of the conduct, ○ Fails to take immediate and appropriate action, and ○ Has the ability to control the conduct of nonemployees. 3. Summarize the main provisions of the Pregnancy Discrimination Act and the associated EEOC guidelines. • EEOC guidelines on pregnancy discrimination state that employees who are temporarily unable to perform their jobs adequately because of a pregnancy-related condition must be treated in the same manner as employees who are temporarily disabled for other reasons. Some specific suggestions for complying with the PDA are: • Employers must apply all policies (e.g., absence, modified duty) consistently to both pregnant and nonpregnant employees. Inconsistent application can be taken as evidence of discriminatory intent. • Employers may reject a pregnant applicant whose pregnancy is expected to make her unavailable during a critical business period, as long as it has strong evidence to support that expectation. • Employers need to ensure that all supervisors, especially ones that play a role in the discharge decision, refrain from making any negative comments regarding their employee’s pregnancy. Such comments can be used as evidence of discrimination. • The PDA does not guarantee that an employee will be reinstated to her old position following her maternity leave. When terminating such workers, the employer must present a legitimate, nondiscriminatory reason for its action. • The PDA does not legally require employers to accommodate pregnant employees by offering them light duty assignments unless all other temporarily disabled workers are so accommodated. 4. The chapter explained that the decision to implement a fetal protection policy puts employers between a rock and a hard place. Explain the employer’s dilemma. On one hand, fetal protection policies can be considered discriminatory. On the other hand, employers have both a moral and legal responsibility to protect workers from workplace hazards. 5. What type of evidence must an employer present in court to rebut claims of discrimination regarding discharge for poor performance? For layoff decisions that adversely affect older workers? • Discharge for Poor Performance ○ Clear performance standards should be set and communicated to employees; the appraisers should follow company guidelines when completing the ratings, and, when problems arise, employees should be told how they have failed to meet the standards. ○ Other evidence that would buttress an employer’s case includes the following: • Additional evidence of poor performance, such as notes, memos, records of customer complaints, or eyewitness testimony of poor performance. • Records that demonstrate that the discharged individual has been treated the same as others in the company who have had similar performance problems. • Evidence demonstrating that, prior to the discharge, the manager attempted to help the employee improve performance by providing counseling. • Layoff decisions that adversely affect older workers ○ The employer must first demonstrate that the layoff was not simply a guise for discrimination. Companies can justify layoff decisions by such evidence as lagging sales, growing inventory, or a depressed economy. ○ Employers should also provide evidence that they considered all other options, such as transferring employees to vacant positions, placing them in newly created part-time positions, or allowing them to work a shorter workweek. ○ The employer must also be able to justify why it chose to layoff the complainant rather than another employee; that is, it must demonstrate that its decision was based on genuine business concerns and was thus not a pretext for discrimination. ○ Claims of discrimination can also be refuted by statistical evidence. Statistics can help an employer’s case, for instance if they could demonstrate that the workforce stayed the same with respect to age, sex, rate, etc., after the layoff. 6. Summarize the three major laws designed to protect employee privacy rights. • Privacy Ave of 1974—A law giving public-sector employees access to any information in their files. • Freedom of Information Act of 1966—A law designed to make most government records available to the public. • Intrusion Upon Seclusion—A common law doctrine stating that a person’s privacy rights are violated when the intrusion upon his or her private concerns would be considered highly offensive to a reasonable person. 7. Describe the three standards an employer’s search must meet in order to ensure the searches are conducted legally. • A company must have a reasonable basis for conducting the search. • A set of written guidelines, issued by the company, should inform employees of its search policy. • The person conducting the search should take all reasonable precautions to ensure the search is not conducted offensively or abusively. 8. Describe the pros and cons associated with employer surveillance and monitoring practices. • Pros ○ They help organizations improve efficiency, provide employees with performance feedback, ensure customer satisfaction, and detect theft. • Cons ○ Some people believe that such practices degrade employees, conjuring up the notion of “big brother.” Monitoring employee behavior may also lead to stress and hinder employee morale. 9. Define employment-at-will. Describe the three exceptions that have been recently applied to this doctrine. • Employment-at-will is a legal doctrine stating that employers may discharge their employees for any reason, even an unfair one, unless the discharge is limited by contract or by federal or state statutes. • The three exceptions to the employment-at-will doctrine are: ○ Public policy—A doctrine that serves society and, if violated, will cause harm to society. ○ Implied contract—An unwritten contractual agreement. ○ Good faith and fair dealing—A common law prohibiting discharges that are particularly repugnant or unfair. 10. How can a manager create a good work environment? • Managers can create the proper work climate by: ○ setting good examples, ○ showing employees their concern for the workers’ well-being, ○ keeping them informed about problems, and ○ dealing with employees in a firm, but fair manner. 11. Summarize the steps a manager should take when dealing with a problem subordinate. Managers should directly deal with problem subordinates. The goal is to clarify the unwanted behaviors and their consequences. Establish clear-cut expectations; clarify what is wrong and what you expect to see changed. 12. How should a manager handle a complaint of sexual harassment? • Determine if the alleged behavior has actually occurred. • If you conclude that the alleged behavior has occurred, determine if it could be legally construed as sexual harassment. • Determine the appropriate action to take. Discipline for sexual harassment should be based on the severity of the behavior. A serious offence, such as sexual assault, calls for harsh discipline—suspension, probation, or termination. Less serious offences, such as off-color remarks or innuendoes, require less severe measures—a disciplinary meeting with the offender and a follow-up memo put in his or her personnel file. However, if the harassment persists, more severe forms of discipline are warranted. EXPERIENTIAL EXERCISES Conducting a Disciplinary Conference Overview: You will be given two disciplinary cases to role-play. The class will be divided into groups of four. Two people will role play the first case; the other two will serve as observers. The two observers will be the role-players for the second case, and the other two will become the observers. Instructions for Role-Players 1. Decide who will be the manager and who will be the subordinate. 2. Read the case. 3. Prepare for your task. • Manager: Review the steps for conducting a disciplinary conference and decide how you will follow them. Plan what you will say and how you will respond to the subordinate’s possible comments. • Subordinate: Try to put yourself in the position of the subordinate depicted in the case. View this as an important issue to you and try to justify your behavior. Be prepared to present arguments in your defense. Do not make the manager’s job easy! 4. Conduct the role-play. Take whatever time is necessary to complete the disciplinary conference. Manager, go through all 13 steps. You may refer to the text during the conference to help you recall the steps. Instructions for Observers 1. Read the case. 2. Review the steps to the disciplinary conference in the text. 3. Observe the role-play and take notes on how well the manager carried out each step. If the manager had a difficult time completing a step, note what he or she may have done wrong and how the step could have been more successfully carried out. After the Role-Play The purpose of the following activities is to give the manager feedback on his or her performance during the role-play. The post role-play session should proceed as follows: 1. The subordinate should discuss how he or she felt about the conference. Did the manager make him or her angry? Did the manager show concern for the employee? Did the employee leave the session with a positive attitude and a commitment to do better in the future? Are there any residual hard feelings? 2. The observers should discuss the manager’s performance during each step of the conference. Were any steps not properly followed or not followed at all? In what specific instances did the manager deal effectively with problems that arose? Give the manager suggestions on how to improve his or her performance in future disciplinary conferences. CASES Case 1: Sexual Harassment Objective: Apply students’ knowledge of sexual harassment principles to an actual situation. What do to: Cover this case in conjunction with your lecture on sexual harassment. 1. What law(s) would form the basis for the plaintiff’s charge? Julie would file a claim under Title VII of the Civil Rights Act. 2. What arguments should the plaintiff make? Julie would argue that Rod’s behavior created a hostile work environment for her and would be viewed as abusive by a reasonable person. 3. What arguments should the employer make in its defense? The employer would argue that it is not responsible for Rod’s behavior because he is not in a supervisory or management position and it was unaware of what was going on. 4. What would the court’s decision be? Most likely the court would rule in Julie’s favor. 5. What rationale would the court give to support its decision? Rod’s behavior would be deemed abusive because of its frequency and because it continued for a long period of time. In addition it was fairly severe in nature, based on the inappropriate touching. The court would also rule that the behavior was unwelcome because Julie asked Rod to stop and he ignored her request. As far as the employer’s liability, the court would have to determine if the employer should have known about Rod’s behavior. If the answer is yes, Julie would win. 6. Should the company have done anything differently in order to avoid the charges in the first place? If so, what? ABC Company should have a strong reporting system that encourages harassed employees to file a formal complaint. The company should also provide extensive training for its supervisors on knowing how to spot sexual harassment. Another important factor is to establish a means of detecting unreported instances of sexual harassment within the company. Case 2: Privacy of Personal Records and Wrongful Termination Objective: Apply students’ knowledge of privacy laws to an actual situation. What do to: Cover this case in conjunction with your lecture of privacy of information. 1. What law(s) would form the basis for the plaintiff’s charge? • Howard would be able to sue the counselor under the common law doctrine of intrusion upon seclusion. • Howard could also sue the employer for wrongful termination and/or for violation of the Americans with Disabilities Act. 2. What arguments should the plaintiff make? • In reference to the claim against the counselor, Howard would argue that the information given was with the understanding that it would be kept confidential. The counselor violated his right to privacy when he told the employer about his fears. • In reference to the claim against the employer, Howard would argue that his mental disability placed him under the protection of the ADA. The employer would then have a responsibility to accommodate his disability, which could have taken the form of suspension until he recovered, as opposed to termination. 3. What arguments should the employer make in its defense? • The counselor would argue that he had a professional and legal obligation to relay his concerns to the employer and breach confidentiality when the patient poses a danger to themselves or others. • The employer would argue that the termination falls under the protection of the employment-at-will doctrine. Assuming Howard is covered by the ADA, the employer would not have to accommodate him because he is unable to safely perform the essential functions of his job. 4. What would the court’s decision be? The court would most likely rule against Howard on both claims. If the employer did not act swiftly they would be at risk for a negligent retention claim (discussed in Chapter 13). When an employer is informed that an employee poses a safety risk to themselves or others the employer is obligated to remove that risk. 5. What rationale would the court give to support its decision? The counselor and employer acted properly and within the scope of the law. 6. Should the company have done anything differently in order to avoid the charges in the first place? If so, what? No, the employer acted properly. CRITICAL THINKING EXERCISES 1. If your college or university is located in a small town, it is likely that no Marriott Hotel exists in your area. Therefore, no one can directly relate to this specific situation. Ask students if they have been treated unfairly as a hotel/motel guest. Ask if, during an overnight stay, they have witnessed an employee being treated unfairly by management. If so, what would the person’s complaint be and how should it be handled? 2. Allow students to debate which bullet item of competitive advantage (on page 11-2) will produce the “best” results. Let them justify their reasoning for increased competitive advantage. Is there another way to accomplish this? 3. Which of the bullet items on workplace justice and discrimination (on page 11-2 to 11-3) would be the most difficult to deal with or administer? Try to imagine the types of problems that would be associated with it. Let students research the types of businesses or industries that are exempt from each of the above. 4. Which of the privacy-related issues discussed in Section 11-2b would have the most potentially damaging effects on competitive advantage if administered inappropriately? What is your reasoning? Which types of businesses or industries would be most affected by each of the issues? Have students relate their experiences in this area. 5. Ask students to research employment-at-will on the Internet. Let them bring specific examples of wrongful discharge to class and be ready to explain why each was inappropriate. 6. Plan ahead to conduct a mock disciplinary conference during class. Assign two students as violators of the same offense, one person as the line manager, and one as the HR professional. Actually go through the 13 steps of conducting a disciplinary conference. Create an offense of breaking some rule that is moderately significant. Let the rest of the class comment on how the conference was handled. ESSAY QUESTIONS 1. A company can gain a competitive advantage by willingly complying with workplace justice laws. Why is this true? A company can gain a competitive advantage by complying with workplace justice laws because it fosters a positive work environment, enhances employee morale, and builds trust. This leads to higher productivity, lower turnover, and a stronger employer brand. Additionally, ethical practices can attract customers and investors who prioritize corporate social responsibility, ultimately boosting the company's reputation and bottom line. 2. Explain five ways in which sexual harassment causes problems for employers. Sexual harassment causes problems for employers in several ways: 1. Legal Liability: Employers can face lawsuits and significant financial penalties if they fail to address harassment claims appropriately. 2. Decreased Productivity: A hostile work environment can lead to decreased employee morale and productivity, as victims may feel distracted or disengaged. 3. High Turnover Rates: Employees may leave the company to escape harassment, leading to increased recruitment and training costs. 4. Reputation Damage: Publicized harassment incidents can tarnish a company’s reputation, making it harder to attract talent and customers. 5. Low Employee Engagement: A culture of harassment can result in low trust and engagement among staff, harming collaboration and overall workplace culture. 3. Name the two categories that sexual harassment includes and how they compare with each other. Sexual harassment includes two categories: 1. Quid Pro Quo: Involves direct coercion where employment benefits are conditioned on sexual favors (e.g., promotions in exchange for sexual advances). 2. Hostile Work Environment: Involves unwelcome behavior that creates an intimidating atmosphere (e.g., inappropriate comments or actions that disrupt work). Comparison: Quid pro quo is about direct exchanges tied to employment, while hostile work environment focuses on pervasive intimidation affecting all employees. Both are serious violations but manifest differently. 4. How does one prove a hostile environment case? To prove a hostile work environment case, one must demonstrate: 1. Unwelcome Behavior: The conduct was uninvited and offensive. 2. Severity or Pervasiveness: The behavior was severe, frequent, or pervasive enough to create an intimidating atmosphere. 3. Impact on Employment: The harassment affected the victim's ability to work, impacting job performance or creating a detrimental work environment. 4. Employer Knowledge: The employer knew or should have known about the harassment and failed to take appropriate action to address it. Collecting evidence, such as witness statements, emails, or documented complaints, can further support the case. 5. Explain five ways an employer can deal with sexual harassment? Employers can address sexual harassment through the following measures: 1. Clear Policies: Establish and communicate a comprehensive anti-harassment policy outlining unacceptable behaviors and reporting procedures. 2. Training Programs: Conduct regular training sessions for all employees on recognizing, preventing, and responding to sexual harassment. 3. Prompt Investigation: Investigate complaints swiftly and thoroughly, ensuring confidentiality and protecting all parties involved. 4. Enforcement of Consequences: Implement appropriate disciplinary actions for those found guilty of harassment to demonstrate zero tolerance. 5. Support Systems: Provide resources such as counseling or support groups for victims and encourage a culture of reporting without fear of retaliation. 6. What are fetal protection policies (FPPs) and who is this policy for? Fetal protection policies (FPPs) are workplace guidelines designed to protect the health and safety of pregnant employees and their unborn children. These policies often restrict exposure to hazardous substances or unsafe working conditions that could adversely affect fetal development. FPPs are primarily for pregnant employees, but they also consider the broader workplace environment to ensure safety for all employees and their families. The goal is to balance workplace safety while supporting pregnant workers' rights. 7. What are the provisions to include in a discipline and discharge policy? A discipline and discharge policy should include the following provisions: 1. Clear Expectations: Outline acceptable behaviors and performance standards for employees. 2. Progressive Discipline: Detail a step-by-step approach for handling infractions, such as verbal warnings, written warnings, and suspension before termination. 3. Investigation Procedures: Describe the process for investigating allegations or performance issues fairly and thoroughly. 4. Documentation Requirements: Specify the need for written records of disciplinary actions, including the reasons and any employee responses. 5. Appeal Process: Provide a clear procedure for employees to appeal disciplinary decisions, ensuring transparency and fairness. 8. How do the fifth and fourteenth amendments to the constitution prohibit wrongful termination? The Fifth Amendment and Fourteenth Amendment to the U.S. Constitution prohibit wrongful termination through the following means: 1. Fifth Amendment: Protects against the deprivation of life, liberty, or property without due process. In the employment context, this means government employers cannot terminate employees without fair procedures or just cause. 2. Fourteenth Amendment: Extends similar due process protections to state employers, ensuring that individuals cannot be wrongfully terminated without a fair hearing or legitimate reason. Together, these amendments safeguard employees from arbitrary or unjust dismissals in public employment settings. 9. Compose a memo to line managers explaining what the term good faith and fair dealing means to a company? Memo To: Line Managers From: [Your Name] Date: [Today’s Date] Subject: Understanding Good Faith and Fair Dealing Dear Team, I want to take a moment to clarify the concept of good faith and fair dealing as it pertains to our company. This principle refers to the expectation that all parties involved in a contract or employment relationship will act honestly and fairly, without undermining the agreed-upon terms. Key points to consider: 1. Trust and Integrity: Good faith fosters trust among employees, management, and stakeholders, leading to a more collaborative work environment. 2. Contractual Obligations: In our agreements, this principle ensures that both parties fulfill their obligations and do not act in ways that would intentionally harm the other. 3. Conflict Resolution: Emphasizing good faith encourages open communication and resolution of disputes, minimizing misunderstandings and fostering a positive workplace culture. 4. Legal Implications: Upholding good faith and fair dealing can reduce legal risks, as failure to do so may lead to claims of breach of contract or unfair practices. Let's commit to embodying these principles in our daily operations to strengthen our company culture and relationships. Thank you for your attention. Best, [Your Name] [Your Position] 10. Explain the following points: a. How do effective workplace justice policies enhance competitive advantage? b. Describe the antidiscrimination laws that dictate how employees should be treated on a day-to-day basis. c. Discuss the extent to which employee privacy rights are legally protected. d. Explain employee rights regarding unfair discharges. e. Discuss what management skills are needed to comply effectively with workplace justice laws. a. Enhancing Competitive Advantage through Workplace Justice Policies Effective workplace justice policies enhance competitive advantage by fostering a positive work environment, increasing employee morale, and promoting retention. When employees feel valued and treated fairly, productivity rises, leading to improved organizational performance and a stronger employer brand, which can attract top talent and loyal customers. b. Antidiscrimination Laws Antidiscrimination laws, such as the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, dictate that employees must not be discriminated against based on race, gender, religion, disability, or age. These laws require fair treatment in hiring, promotion, training, and daily workplace interactions, ensuring equal opportunities for all employees. c. Employee Privacy Rights Employee privacy rights are legally protected to some extent, but they can vary by jurisdiction. Generally, employees have the right to privacy regarding personal information, communications, and personal belongings. However, employers often have the right to monitor workplace communications and activities, provided they have a legitimate business reason and inform employees about monitoring practices. d. Employee Rights Regarding Unfair Discharges Employees have the right to challenge unfair discharges if they violate employment contracts, company policies, or applicable laws. Many jurisdictions protect employees from termination based on discriminatory reasons, retaliation for whistleblowing, or breaches of public policy. Employees may seek recourse through internal grievance procedures or legal channels. e. Management Skills for Compliance with Workplace Justice Laws To comply effectively with workplace justice laws, managers need strong skills in communication, conflict resolution, and empathy. They should be adept at understanding and implementing policies, training employees, and fostering an inclusive culture. Additionally, they must stay informed about legal changes and ensure that workplace practices align with antidiscrimination and employee rights laws. OTHER RESOURCES I. Websites www.backlash.com/content/gender. This site discusses general gender issues. http://www.usdoj.gov/ovw/. Women as victims are the central theme of this site. II. Articles “What’s Fair Depends on Where You’re From: Cultural Values Shape Workplace Justice,” D. Farlin, University of Dayton Office of Public Relations, May 31, 2001. The article shows business mistakes that cultures make with each other. “Workplace Justice and Job Satisfaction as Predictors of Satisfaction with Union and Management,” G. Fryxell and M. Gordon, Academy of Managerial Journal, Vol. 32, No. 4, pp. 851–866, 1989. A relationship between workplace justice and job satisfaction exists in this informative article—old—but still good. III. Forums Justice in the Workplace Forum. This form covers HR philosophies and examples among church workplace personnel. See www.nacpa.org/services/justice.htm. Solution Manual for Human Resource Management: A Managerial Tool for Competitive Advantage Lawrence S. Kleiman 9781426649189
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