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This article examines the post-tenure review (PTR) policies in American institutions of higher education as a means of identifying and documenting faculty performance deficiencies from a legalistic perspective. In addressing this issue, a brief review of PTR policies and their history, as well as some of the misconceptions of the protection provided by tenured status, is provided. The main focus of the article is placed upon the just-cause termination of tenured faculty members, paying particular attention to the due process protections afforded such faculty. In conclusion, we examine the organizational costs of failing to dispel the myths that tenured faculty are 'termination-proof' and invulnerable to any disciplinary sanctions. There is right, there is wrong and there is the law.--Anonymous, Introduction The perennial debate about post-tenure review (PTR) in U.S. public institutions of higher education has surfaced again, as external constituents are increasingly pressuring these institutions to design and implement [...]

On June 23, 2003, the Supreme Court of the United States, in a five to four decision, substantially altered the nature of state imposed affirmative action permissible under the Equal Protection Clause of the Fourteenth Amendment when it held that diversity could serve as a compelling government interest, thus justifying public sector preferential programs. Though this ruling pertained specifically to race-based preferential university admissions, it is likely to have wide ranging implications for all public sector affirmative action programs. One implication may include making it easier to justify state initiated affirmative action by diminishing the requirement to demonstrate the remedial motive behind such action. This article discusses the impact that the Grutter v. Bollinger and Gratz v. Bollinger decisions are likely to have on preferential admissions policies in public higher education., Introduction On June 23, 2003, the Supreme Court of the United States, in a five to four decision, substantially changed the nature of state imposed affirmative action when it held [...]

The Supreme Court established the vicarious liability of employers for the hostile sexual atmosphere fostered by their managerial personnel in two sexual harassment cases in 1998, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton. However, employers can raise as an affirmative defense the failure of the plaintiff-employee to notify it of the hostile atmosphere and to take advantage of corrective opportunities. Employers' anti-harassment policies must accommodate these new holdings.

In 1995 a series of federal court decisions called into question the efficacy of race-based preferential treatment programs initiated by two leading public universities.(1) Both decisions occurred at a time when government-imposed, race-conscious remedial measures are being increasingly challenged on the grounds that they either violate the Civil Rights Act of 1964,(2) or breach the guarantee of equal protection under the laws provided by the Fourteenth Amendment. Most recently, a federally mandated race-based preference was successfully challenged on the grounds that it violated an implied equal protection clause in the Fifth Amendment.(3) As a further indication of this shift away from state supported racial preferences, legislation is pending in Congress(4) that, if enacted, would make the consideration of any individual's race, color, national origin or gender in regard to selection or eligibility for any federal program unlawful., In response to these judicial and legislative initiatives, the popular media has announced the demise of all affirmative action programs. This article, through analysis of the aforementioned case law and [...]

The US Supreme Court relied on its decision in Harris v. Forklift Systems to clarify its same sex-employment sexual harassment criteria set out in Oncale v. Sundowner Offshore Services. The criteria for same sex harassment was extended from opposite sex-employment sexual harassment. The Oncale decision did not resolve, however, same sex heterosexual harassment issues.

Many state legislatures have affirmative action restrictions pending, but such restrictions come mainly from the courts, who are finding that some programs have continued after their goals were met or have been justified by reasons not having a compelling governmental interest. It is not surprising that many affirmative action programs for state and local employees have become institutionalized with over 30 years of operation. Risks such as reverse discrimination suits or one ethnic minority suing another endanger the public sector if these programs are not audited.

Most healthcare organizations are currently or will shortly be composed of a multicultural and multilingual workforce. In attempting to manage such diverse workforces, English-only work rules may be necessary to ensure effective communication among workers. However, care must be taken to insure that the employees' rights to free speech and a harassment-free workplace are not infringed by utilizing English-only work rules. This article attempts to assist the healthcare manager in dealing with the legal aspects of English-only work rules. Specifically, an examination of two legal cases is provided to illustrate the various legal aspects of such work rules. Also, suggestions are offered as to how and when, or when not, to implement English-only work rule in order to avoid possible liability., Employers including the healthcare industry should seek alternatives before enforcing an English-only rule in the workplace, as employees may file claims of discriminatory treatment. In a diverse population, fellow workers sometimes suspect derogatory remarks and demand that only English be allowed. Examined are two cases, one in which Filipino nurses were forbidden to speak Tagalog, and one in which Hispanic workers complained that they were forbidden to speak the language in which they were most comfortable., Introduction The issue of workplace diversity has become one of the most discussed management topics of the 1990s. However, just what the term diversity encompasses is debatable because the term [...]

This article presents the results of a survey questionnaire developed to ascertain which of three constituent groups (Superiors, Peers, and Subordinates) in the workplace has the greatest influence on rater compliance with employee performance appraisal guidelines. The research found that superiors had the greatest influence on rater compliance with rating procedures., Anyone who has followed the recent public opinion polls understands the increasing demands of voters for a reduction of 'the bureaucracy' at all levels of government. Public mandates for reduced [...]

The US Supreme Court's decision in Adarand Constructors, Inc v. Pena will not impact states or local government's affirmative action programs but expands the existing equal protection standards to the federal government. Federal contract set-asides and affirmative action programs will now have to meet the two-part test involving compelling government interest and the absence of race-neutral alternative remedies. Private programs are also unaffected.

Two recent National Labor Relations Board decisions, Electromation and DuPont, may very well be used to declare many health care organizations' employee empowerment and participation programs including TQM and CQI groups) in violation of U.S. labor laws. This article provides a detailed explanation of the NLRB's two-part inquiry that will now be used to determine whether a health care institution's employee participation programs are under the NLRB's jurisdiction as a labor organization, and if so, whether the institution is engaged in unlawful employer domination. This article will also provide guidance from the NLRB as to what form of employee participation may be permitted under the National Labor Relations Act., The National Labor Relations Act (NLRA) will have significant impact on the development of healthcare setting employee participation programs (EPP), which are central to the emerging management techniques known as continuous quality improvement and total quality management. This is evidenced by two National Labor Relations Board (NLRB) decisions that found that these programs violated the NLRA. The decisions will be used in future cases to determine if the EPPs in fact fall under the jurisdiction of the NLRB as labor organizations, whether or not the employer is unionized. A detailed analysis of the NLRB's inquiry is presented., The use of TQM or CQI has become widespread in the health care industry. In Eubanks' (1992) survey of hospital CEOs, over 58.5 percent of the respondents reported that their [...]

Affirmative action plans involving preferential promotion must be designed carefully to avoid reverse discrimination. The 11th Circuit Court of Appeals decision In re Birmingham Reverse Discrimination Employment Litigation helps to clarify when such an affirmative action plan constitutes reverse discrimination. To avoid reverse discrimination charges, a utilization analysis should be conducted to determine realistic goals for the program based on the relevant labor market. The plan should be narrowly designed, flexible and of limited duration to comply with both Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause.

The US Supreme Court dealt in Landgraf v. USI Film Products with the retroactivity of the Civil Rights Act of 1991. Landgraf was a sexual harassment claim for which the appellate court denied retroactive application of that law since doing so did not create 'manifest injustice.' The Supreme Court drew a narrower line, stating that retroactivity should depend on vested rights. Though the vested rights theory appears narrower than its predecessor, the theory will probably still have to be construed on a case-by-case basis.

The US Supreme Court found in Harris v. Forklift Systems that the plaintiff in a sexual harassment need not show actual psychological injury to show a hostile working environment. The Court was unwilling to state that merely offensive behavior met the standard of proof, but the Court also rejected the lower court ruling that severe harassment required the plaintiff's psychological well-being to be affected. The Supreme Court failed to resolve uncertainty and provide guidance on the issue of how severity and pervasiveness of the hostile environment are to be shown.

Health care administrators should establish policies against sexual harassment to prevent any liability problems. The media has increased awareness of the problem, especially within the workplace. Procedures should be in place to deal with any problem that should arise. Corrective action options need to be thought out beforehand. A definition of what constitutes sexual harassment should be written, along with what is defined as 'actionable' sexual harassment., Summary Sexual harassment is not new to the health care industry. What is new is that recent media attention has heightened awareness that sexual harassment is illegal. This fact, coupled [...]

Sexual behavior in the workplace is not a recent phenomenon. But, the concept of sexual harassment is of recent origin. Not until the 1970's did workers, primarily women, find legal […]

American multinational companies are facing a growing list of conflicting realities as they staff their international divisions. Primary among them is that managers currently based in the United States are [...]

The goal of the Civil Rights Act of 1981 was to redress inequities created by several Rehnquist Court decisions during the court's 1989 term, but the act was watered down somewhat as a result of compromise with the Bush administration. The act still imposes on employers a higher burden of proof to defend practices resulting in 'disparate impact.' Employers will want to protect themselves by developing more formalized personnel practices and reviewing those in existence to make sure they have no discriminatory criteria and that job requirements are clearly job-related.

Since the mid-1980s, affirmative action plans (AAPs) have come under ever increasing criticism. Many detractors argue that AAPs serve no purpose other than to veil thinly reverse discrimination against whites. […]

Congress enacted into law a bill which proposes the extension of civil rights protection to Americans working for US companies overseas on Nov 21, 1991. The Civil Rights Act of 1991 ensures that US citizens working for nonterritorial US-owned or controlled corporations are subject to the same employment rights as their domestic counterparts. However, this protection extends only so long as the laws of the host country do not prohibit it. The Act has economic, legal, ethical and discretionary ramifications on these multinational corporations.

Personnel managers must become aware of the increases in the number of employees with AIDS and take a practical and proactive approach to develop a company policy that affords the company legal protection and respects the rights of afflicted employees. A corporate AIDS policy must emphasize AIDS education for the workforce to teach how AIDS is spread, provide a forum for employee discussion, and provide information on AIDS treatment. Companies should set up a task force to research the disease and to structure the education program. Personnel should be trained as resource specialists or outside specialists should be retained. AIDS topics should be introduced to employees by educating supervisors first, than all employees. Information should be distributed to employees as soon as it becomes available.

The circuit court rulings on sexual harassment case, Suder v. Easton, has been reviewed by the Supreme Court. The implications of the case for employers are presented.