Q1. Describe the legal concepts of systematic disparate treatment and disparate impact. Ans1. In accordance with the Equal Employment Opportunity (EEO) certain policies and frameworks have been designed to ensure that all US citizens have equal access to and equal treatment in employment.
Based on this, disparate treatment occurs when employees are treated unequally based on their association with a certain race, ethnicity, religion, color or any category of the same sort.Under this circumstance, the plaintiff should be able to prove a case of prima facie and the defendant should be able to prove that the adverse employment action did not have any discriminatory reasons. The extent to which the employers actions were driven by a discriminatory intent can however, be proved by direct or circumstantial evidence (Fisher, Schoenfeldt, Shaw, 2004). The disparate impact is related to disparate treatment but there is a subtle difference which should be taken into account.
Disparate impact is a form of discrimination in which although equal employment opportunity (EEO) standards are applied to all employees in an organization but its impact or consequences on particular groups is different (Fisher, Schoenfeldt, Shaw, 2004). Examples of practices which may be subjected disparate impact include height and weight requirements, interviews, written tests etc.Q2. Determine which legal issue(s) applies in this situation and advise the President on how to handle this situation and why.
Ans2. The fact that the President wants to lay-off 150 workers above the 50 year age group is a clear cut example of discrimination based on the Age Discrimination in Employment Act of 1967. The issue is that this is a practice that deemed older workers unfit and inappropriate to continue working with the firm. The age group covered by the Act is forty and above, i. e.
employees below forty will not be covered by the act.Moreover, the Civil Act of 1991 is also another issue which concerns regarding discrimination which should be taken into account (Fisher, Schoenfeldt, Shaw, 2004). Handling the situation can be tricky since it is a highly delicate manner and the odds are against the company. As the responsibility of such an action will be on the Director of Human Resources it is crucial that a justifiable reason be fashioned.
The fact that senior workers are highly paid yet not that productive can be used in defense.The performance management process should be consulted as prove that senior employees are not that productive and then a decision be made. There should be a set level of employment expectations, performance reviews should be conducted regularly, and job expectations should be clearly defined, constant monitoring and provision of feedback. All these steps in place and even then if an employee fails to meet expectations a lawsuit based on discrimination can be defended.Q3. Recommend a lay-off approach that is legally sound and would address her concerns.
Ans3. Based on the answer to question number two a lay-off approach that would be legally sound would be one that uses the performance management process as a decision tool regarding who should be retained and who should be fired. The performance management system should be analyzed and streamlined in the sense that a set of expectations should be designed based on which all employees, young and old, will be monitored and decisions taken. Productivity measures based on units produced or units serviced, time taken to produce a single unit etc should be employed.
Record keeping is a must so that prove can be given incase of a lawsuit.Based on this, even if a lawsuit occurs, the company’s legal counsel should be contacted, the important documents related to the decision, in this case the poor performance management report should be called for so that it supports the decision (Fisher, Schoenfeldt, Shaw, 2004). Q4. Would your strategy be different if there is a union? If so, how? Ans4.
With the existence of a trade union, the strategy would change. Trade unions usually have an uncanny power to negotiate fair deals for all employees. Given this strategy, it will be difficult for the Human Resources to implement the performance management plan with the trade union.The union would want lower levels of performance expectations so that the old employees’ jobs can be safeguarded. This would also hamper productivity and drive productivity levels lower than existing levels.
Hence another plan would be to offer early retirement to senior workers of the age 50 and above with a fixed monthly payment and health/dental benefits till an age until they qualify for early retirement benefit plans of the government for e. g. 62. Thus, the strategy would completely change given the existence of a trade union.
