A quick scan of the Appendix to this chapter clearly demonstrates that many laws affect the practice of HRM. Several have been passed in the last decade.

The opinions handed down in court cases add to this dynamic environment. For example, in 1971 the Supreme Court handed down a landmark civil rights decision in a case titled Griggs v. Duke Power.8 Among other things, this decision placed a heavy burden of proof on the employer in an employment discrimination case. Normally, a Supreme Court decision sets a precedent that the Court is then very reluctant to overturn. However, in a 1989 case the Court revised the standard it had set in Griggs, making it more difficult for an employee to win a discrimination case.9 Then, in 1991, Congress passed a lengthy amendment to the Civil Rights Act of 1964 (discussed later in this chapter) that returned to the burden-of-proof standard established in the Griggs decision.

These rapid changes are not limited to issues of courtroom procedure. Sexual harassment regulations were adopted by the Equal Employment Opportunity Commission (EEOC) in the early 1980s and accepted by the Supreme Court in 1986. Since then, companies, lawyers, and judges have been attempting to figure out just what they mean and require. Opinions on these issues vary widely, which means that different courts have made differing decisions about what constitutes sexual harassment. Until the Supreme Court makes several more rulings, or Congress clarifies the underlying law, managers will need to pay close attention to the unfolding developments.

HR law, like most other types of law, is very complex. Each individual law is accompanied by a set of regulations that can be lengthy. For instance, the Americans with Disabilities Act (1990) is spelled out in a technical manual that is several hundred pages long. To make matters even more complex, one analysis has concluded that there may be as many as 1,000 different disabilities affecting over 43 million Americans.10 It is very difficult for an expert in HR law, much less a manager, to understand all the possible implications of a particular law.

Nonetheless, the gist of most HR law is fairly straightforward. Managers should be able to understand the basic intention of all such laws without too much difficulty and easily obtain the working knowledge they need to comply with those laws in the vast majority of situations.

Society at large, political representatives, government employees, and judges all have different views regarding the best ways to achieve equitable HR laws. One of the major debates in this area centers on the competing strategies used to further the goal of fair employment —the situation in which employment decisions are not affected by illegal discrimination. The plain language of most civil rights law prohibits employers from making decisions about employees (hiring, performance appraisal, compensation, and so on) on the basis of race, sex, or age. Thus, one strategy to reach the goal of fair employment is for employment decisions to be made without regard to these characteristics. A second strategy, affirmative action , aims to accomplish the goal of fair employment by urging employers to hire certain groups of people who were discriminated against in the past. Thus, affirmative action programs require that employment decisions be made, at least in part, on the basis of characteristics such as race, sex, or age. Obviously, there is a conflict between these two strategies—one proposing that only “blind” hiring practices are fair, the other proposing that fairness requires organizations to make an effort to employ certain categories of people (Figure 3.1).

While the battle resulting from these competing strategies is being played out throughout society, the main legal struggle has occurred in the Supreme Court. Based on a series of Supreme Court decisions, the following conclusions seem warranted:

• ▪ The affirmative action strategy has been upheld. Specifically, employers are permitted to base employment decisions, in part, on a person’s race, sex, age, and certain other characteristics.

• ▪ To be permissible, the employment decision cannot be made solely on the basis of these characteristics. Further, the people considered for the position should be “essentially equally qualified” on job-relevant characteristics before these other characteristics are permitted to play a role in the employment decision.

• ▪ The one situation in which affirmative action is not permitted is during layoffs. For instance, a white teacher should not be laid off to save the job of a Latino teacher, even if this means that minorities will be underrepresented in the postlayoff workforce.

It is very common for a law, a government program, or an organizational policy to have numerous unanticipated consequences, some of which turn out to be negative. HR law is certainly not immune to this phenomenon. For example, the Americans with Disabilities Act (ADA) was primarily intended to increase the possibility of employment for people with physical and/or mental disabilities. However, since the law has gone into effect, job applicants have filed relatively few ADA complaints. Rather, current employees injured on the job have filed the majority of complaints. Traditionally, state workers’ compensation laws (see Chapter 12) regulate the benefits given to employees injured on the job, including income continuation. Nobody intended the ADA to become a national workers’ compensation law, but that appears to be just what is happening. The challenge to managers is to anticipate and deal with both the intended and unintended consequences of law.