The Legal Context of the Management of Human Resources
OP05CH07-Murphy ARI 9 December XXXXXXXXXX:5
Annual Review of Organizational Psychology and
Organizational Behavio
The Legal Context of the
Management of Human
Resources
Kevin R. Murphy
Kemmy Business School, University of Limerick, Limerick V94 T9PX, Ireland;
email: XXXXXXXXXX
Annu. Rev. Organ. Psychol. Organ. Behav. 2018.
5:157–82
First published as a Review in Advance on
December 4, 2017
The Annual Review of Organizational Psychology and
Organizational Behavior is online at
orgpsych.annualreviews.org
https:
doi.org/10.1146/annurev-orgpsych-
XXXXXXXXXX
Copyright c© 2018 by Annual Reviews.
All rights reserved
Keywords
common law, discrimination, adverse impact, validation, sexual
harassment, enforcement agencies
Abstract
Laws designed to reduce employment discrimination and to regulate labo
standards have a strong impact on the management of human resources in
organizations. This article examines in detail the development and enforce-
ment of antidiscrimination laws in the United States; it also considers com-
parable laws and policies in the European Union (EU). A significant body of
esearch focuses on the standards that are used to determine whether par-
ticular policies or practices are discriminatory, and if so, whether they are
sufficiently job-related to be legally permissible; here, I examine key themes
in this research. This article also examines emerging issues, such as deter-
mining who is an applicant and who is an employee, and it explores the role
of the legal environment in impeding the application of scientific knowledge
to advance the practice of human resource management (HRM).
157
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OP05CH07-Murphy ARI 9 December XXXXXXXXXX:5
INTRODUCTION
This article reviews the intersection between the law and the management of human resources
(more specifically, human resource management or HRM) in organizations. It is concerned mainly
with federal legislation and the enforcement of federal laws by agencies such as the Equal Employ-
ment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs
(OFCCP), the Department of Justice, and the Department of Labor. It considers the impact of
laws designed to protect equal employment opportunities on HRM policies and practices. It also
considers laws regulating hours and wages, as well as laws bearing on the status of unions and on
the classification of workers as employees versus independent contractors. I do not cover federal
laws that may influence the workplace but that do not necessarily directly impact HRM, but I do
consider legal structures in other nations, especially as they bear on discrimination in employment.
Finally, this review focuses on works published since 2000 but includes numerous papers outside
of this timeframe.
There are several books and reference works that provide a good overview of the legal context of
HRM. Landy XXXXXXXXXXexamines the relationships between social science and employment litigation;
in a related vein, Paludi et al XXXXXXXXXXpublished a two-volume handbook dealing with understanding
and preventing workplace discrimination that integrates scientific and practical concerns. Gutman
et al XXXXXXXXXXprovide an in-depth review of laws dealing with equal employment opportunity, as
well as relevant court cases (see also Zimmer et al. 2002), and provide useful advice to human
esource managers. The Society for Human Resource Management provides a highly practical
guide to federal employment law (Guerin & DelPo XXXXXXXXXXA recent edited volume (Hanvey &
Sady 2015) provides a more wide-ranging discussion of legal issues, including issues pertaining to
oth discrimination and wage and hour litigation and compensation equity analyses.
Taking a contrarian position, Epstein XXXXXXXXXXargues that employment discrimination laws
should not exist at all, that these laws do more harm than good, and that removing these laws
would restore individual freedom (including freedom to discriminate) to the workplace. King
et al XXXXXXXXXXreview arguments and data relevant to three disparate perspectives on employment
discrimination law: (a) that civil rights laws have accomplished their main goals, (b) that these laws
are misguided and inappropriate, and (c) that civil rights legislation has not gone far enough.
HISTORICAL CONTEXT
Before examining cu
ent laws and the enforcement of these laws, it is useful to consider the
oad history of legal regulation of HRM; for a detailed history going back to colonial times, see
Pope XXXXXXXXXXPrior to the Progressive Era (∼1900–1920), the federal government’s involvement
in workplace issues was usually limited to indirect support for business and industry (e.g., infra-
structure development, tariffs designed to support particular industries), with occasional use of
law enforcement and even the military to intervene in labor disputes (almost always in support
of management). Starting in the early 1900s, and continuing throughout Franklin Roosevelt’s
New Deal (1932–1938), there was an increasing emphasis on federal government intervention to
mitigate the most glaring abuses of the industrial age, reducing the use of child labor, regulating
labor hours, and providing more opportunities for workers to organize into unions. Starting in the
1960s, there was an increasing emphasis on federal legislation designed to reduce discrimination
on the basis of race, sex, nationality, and religion [the Civil Rights Act (CRA) of 1964 (updated
in 1991), Equal Pay Act of 1963], age [the Age Discrimination in Employment Act (ADEA) of
1967], disability [the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) of
1990] and, most recently, genetic information (the Genetic Information Nondiscrimination Act
158 Murphy
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OP05CH07-Murphy ARI 9 December XXXXXXXXXX:5
Table 1 Federal antidiscrimination laws
Major US anti-discrimination laws Bases for discrimination
Civil Rights Acts of 1964 and 1991, Title VII Race, color, sex, national origin, religion
Age Discrimination in Employment Act of 1967 Age (40 and over)
Americans with Disabilities Act of 1990, Rehabilitation Act of
1973 (updated in 2011)
Physical and mental disabilities
Equal Pay Act of 1963 Unequal pay for equal work on jobs the that require equal skill,
effort, and responsibility, and which are performed under simila
working conditions
of XXXXXXXXXXAiken et al XXXXXXXXXXdiscuss the historical context of this period and its bearing on the
structure and enforcement of civil rights law.
In recent years, several issues have emerged as increasingly important. First, an increasing
number of states have enacted so-called right-to-work laws, which limit the extent to which
membership in a union or the payment of union dues or fees can be enforced as a precondition fo
employment. Second, there are ongoing legal controversies over whether individuals ca
ying out
various job functions (e.g., delivery drivers) should be classified as employees or as independent
contractors. Third, as the technology used to apply to jobs changes from small-scale local activities
(e.g., completing a job application and submitting it to an organization) to large-scale activities that
cross organizational borders (e.g., posting resumes electronically on sites such as Monster.com),
critical questions about who should be considered as a job applicant have become more pressing
and more complicated.
Anti-Discrimination Laws
Federal laws dealing directly or indirectly with workplace discrimination can be traced back more
than 150 years (e.g., CRA of 1866), but the laws having the largest impact on HRM policies and
practices were within the past 60 years. Table 1 lists the most important federal antidiscrimination
laws, noting the types of discrimination they cover. In general, these laws fo
id discrimination in
hiring, firing, training, compensation, promotion, transfers, and conditions of work on the basis
of race, color, national origin, religion, sex, age, or disability.
Individual acts can differ in important ways, and research related to the scope, enforcement,
and implications of these various laws has
ought to light important questions. (For example,
should applicants or employees whose disabilities are not visible, such as depression, disclose
their disabled status? Or, what constitutes sexual harassment?) Other laws such as the Family and
Medical Leave Act of 1993, which allows up to 12 weeks of unpaid leave for the birth of a child,
adoption, and certain health-related conditions, can have implications for HRM, but uptake fo
such leaves is relatively rare, in part because they are unpaid (Han & Waldfogel 2003).
Fair Labor Standards Act
Although it received less attention in the organizational psychology and management literatures
than antidiscrimination law, the Fair Labor Standards Act (FLSA) of 1938 is an important piece
of legislation that can have a substantial impact on HRM policies and practices. Introduced as part
of the New Deal, the FLSA impacts millions of workers (Nordlund 1988, Perez XXXXXXXXXXThis law
introduced the forty-hour week, a federal minimum wage (initially 25 cents per hour), time and a
half for overtime in certain jobs, and a reduction in child labor.
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A critical issue in applying FLSA in the cu
ent workplace is a determination of whethe
employees in a particular job are exempt from overtime pay requirements (Crampton et al. 2003).
In general, jobs in