How the law changed HR: five decades of social upheaval and lawmakers' response to it have stimulated radical change in the HR profession

HR Magazine, Dec, 2005 by Paul Salvatore, Allan Weitzman, Daniel Halem

Fifty years ago, most employers did not yet view human resource management as a core business function, and few aspiring executives viewed HR as a desirable career path.

Things certainly have changed. Today, most organizations consider HR professionals indispensable to their enterprise. HR officers, who often hold graduate degrees in human resource management, business or law, occupy the highest levels of management in most of the country's largest employers.

Changes in societal values and norms and in workplace demographics led to dramatic changes in U.S. employment laws beginning in the 1960s. The proliferation of employment laws and regulations, in turn, stimulated the evolution of the HR profession. It has now become so difficult for even the most ambitious HR professional to master the alphabet soup of employment statutes and regulations that the trend toward specialization in the profession is increasing and is unlikely to let up.

Let's take a closer look at how five decades of labor and employment law developments have contributed to making the job of HR professional the multidisciplinary phenomenon that it is today and speculate a bit about what the future for the profession may hold.

1950s: Untamed Wilderness

During the 1950s, the typical American employee was a white male with a high school diploma. Women made up a third of the civilian workforce, and minorities made up only a tenth. Most employees worked blue-collar jobs; professional employees represented 18 percent of the labor force, while service-sector workers accounted for only 12 percent.

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On the legal front, two overarching constructs characterized the American workplace: the presumption of at-will employment and the federally protected alternative of unionization. The only significant federal regulation of most employers consisted of the National Labor Relations Act (NLRA), which governs the rights of employees with respect to unionization and other collective activity, and the Fair Labor Standards Act (FLSA), which sets minimum wage and overtime requirements, among other things. Thus, in the absence of a labor union, employers had virtually unfettered discretion over most employment decisions.

Employers' response to workforce changes wrought by World War II illustrates the extent of their freedom from regulation. During the war, the armed forces increased from 800,000 men in December 1940 to 12.3 million in June 1945. Women flooded the civilian workforce to alleviate labor shortages. As veterans, mostly male, returned to the workforce, however, employers often fired their female employees simply to create job openings for men. Making employment decisions based on sex, race or national origin--the mere thought of which gives modern HR professionals the shakes--was commonplace.

Without protective legislation, many employees turned to labor unions to represent their interests.

Management and labor established terms and conditions of employment bilaterally through collective bargaining and incorporated a "just cause" standard for discharge in most labor agreements.

By 1954, 35 percent of nonagricultural workers belonged to a union--the highest proportion in American history. With the 1947 Taft-Hartley Act amendments to the NLRA, Congress attempted to curb what was perceived as excessive union power by leveling the playing field for employers and unions, but the changes did little in the short term to stunt union growth.

The union culture of the 1950s reflected the ethos of post-World War II America. Organized labor's philosophy that workers were stronger when they banded together resonated in a country of war veterans who had witnessed the power of collective action while in the military, and who had been trained to protect and look out for their comrades in arms.

1960s: Civil Rights Comes to Work

The civil rights movement brought significant changes as societal pressures set the wheels in motion for using laws to drive social change and for using litigation to protect constitutional rights in voting, housing and employment. Several pieces of employment legislation--the first in decades--were enacted to root out job discrimination in America.

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* In 1963, the Equal Pay Act prohibited employers from making gender-based distinctions in pay for equal work.

* In 1964, Title VII of the Civil Rights Act prohibited discrimination in any aspect of employment--including hiring, wages, working conditions, promotions or terminations--on the basis of race, color, sex, national origin or religion. Title VII also prohibits employers from retaliating against employees who oppose discrimination or participate in Title VII proceedings.

* In 1967, the Age Discrimination in Employment Act (ADEA) made it unlawful for employers to discriminate against individuals age 40 and over in any aspect of employment.

New government entities, including the Equal Employment Opportunity Commission (EEOC), were created to eradicate job discrimination.

Compliance with the antidiscrimination laws required employers to devise more-sophisticated personnel policies and procedures both to ensure that they did not base employment decisions on prohibited criteria and to enable them to defend their decisions if challenged.