BIZ LAW CH18

In addition to the Civil Rights Act of 1964, victims of racial or ethnic discrimination may also have a cause of action under .

42 U.S.C. Section 1981

Business necessity

A defense to allegations of employment discrimination in which the employer demonstrates that an employment practice that discriminates against members of a protected class is related to job performance

Tangible employment action

A significant change in employment status, such as firing or failing to promote an employee, reassigning the employee to a position with significantly different responsibilities, or effecting a significant change in employment benefits

Harassment by supervisors

A supervisor must have taken a tangible employment action against employee

Calvin has difficulty seeing, but uses voice recognition software allowing him to dictate articles. His computer is also specially designed for visually impaired individuals. The Daily Times interviews Calvin but offers the job to a sighted person instead. The Daily Times may have violated the .

ADA

The primary law that deals with discrimination based on disability is the:

ADA (Americans with Disabilities Act)

Retaliation by employers

Action would have dissuaded a reasonable worker from making a discrimination claim

Defenses to employment discrimination

Business Necessity Bona Fide Occupational Qualification Seniority Systems A Lack of Motive After-Aquired Evidence of Employee Misconduct

Defenses to Employment Discrimination

Business Necessity Bona Fide Occupational Qualification Seniority System Lack of Motive After-aquired Evidence of Employee Misconduct

Seniority Systems

Distribution of benefits is based on length of time one has worked for an employer Only defense if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws

The federal agency that monitors compliance with Title VII is the ....

EEOC (Equal Employment Opportunity Commission)

Harassment by co-workers and others

Employer generally liable only if employer knew or should have known and failed to take action. Notice to supervisor is sufficient under agency law Employers may also be liable for harassment by non-employees

The Ellerth/Faragher affirmative defense

Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior, and Plaintiff-employee must have unreasonably failed to take advantage of preventative or corrective opportunities to avoid harm. If an employer can prove both elements, he will not be liable for supervisor's harassment

Bona Fide Occupational Qualification

Employer must show a particular skill is necessary for performance of the job. For disparate impact discrimination

Discrimination Based on Gender

Employers are prohibited from classifying jobs based on gender, unless employer can prove gender is essential to the job. Women impacted by pregnancy must be treated the same as other employees. Requirement of equal pay for equal work at the same business

Discrimination Based on Religion

Employers must reasonably accommodate sincerely held religious practices, unless to do so would cause undue hardship to employer's business

Other types of harassment that can be actionable

Harassment by coworkers Same gender harassment Sexual orientation harassment

Online Harassment

Hostile work environment created using company chat, blogs, email Employers can avoid liability with prompt remedial action Employees may be discharged for using company computers to distribute offensive material to coworkers

Bona fide occupational qualificaton (BFOQ)

Identifiable characteristics reasonably necessary to the normal operation of a particular business. These characteristics can include gender, national origin, and religion, but not race

Undue hardship

If an employee can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made

Seniority system

In regard to employment relationships, a system in which those who have worked the longest for the company are first in line for promotions, salary increases, and other benefits; they are also the last to be laid off if the workforce must be reduced

Sexual harassment

In the employment context, the granting of job promotions or other benefits in return for sexual favors or language or conduct that is so sexually offensive that it creates a hostile working environment

Affirmative action

Job-hiring policies that give special consideration to members of protected classes in an effort to overcome present effects of past discrimination

Prima facie case

Member of the protected age group Qualified for position form which discharged Discharged because of age discrimination **is a case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces evidence to rebut it.

Job application and physical exams

Modifications to applications and selection process so those with disabilities can compete Restrictions on pre-hiring questions and physical exams

The Equal Employment Opportunity Commission (EEOC)

Monitors compliance with Title VII. Generally only investigates "priority" cases like retaliatory firings

Reasonable Accomodation

Undue hardship, Job applications and physical exams, substance abuse

The University Smyth has an admissions policy that requires a certain number of points to be automatically awarded to minority applicants. This type of policy may violate the

a. equal protection clause.

Legislation, judicial decisions, and administrative agency actions prohibit employers from discriminating against workers on the basis of all EXCEPT:

h. ability to get the job done.

City Presbyterian Church needs a new headmaster. Mohammad, a devout Muslim, applies for the job. The church declines to hire him and continues to look for other applicants. If Mohammad files a claim of illegal discrimination against the church, the church...

may assert a bona fide occupational qualification (BFOQ) defense.

Intentional/unintentional discrimination, Disparate-treatment discrimination not on test

nope

The Age Discrimination in Employment Act (ADEA)

protects individuals over 40 from workplace discrimination

Affirmative action programs normally are constitutional only if they attempt to __ past discrimination and do not make use of quotas or preferences.

remedy

State Employees Not Covered by the ADEA

Generally, states are immune from lawsuits brought by private individuals in federal court

A Lack of Motive

Plaintiff must show there was a discriminatory motive as part of the case

For the Age Discrimination and Employment Act (ADEA) to apply, the employer must have __ or more employees

20

The ADA Defines a Disability as Including Any of the Following:

1. A physical or mental impairment that substantially limits one ore more of the major life activities of the affected individuals 2. A record of having such impairment 3. Being regarded as having such an impairment

Reasons Why an Employer Can Fire or Refuse to Hire a Person Who Is an Alcoholic.

1. He/she poses a substantial risk of harm either to himself or herself or to others 2. The risk cannot be reduced by reasonable accommodation

Two forms of sexual harassment

1. Quid pro quo harassment **occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits 2. Hostile-environment harassment **occurs when a pattern of sexually offensive conduct runs throughout the workplace and the employer has not taken steps to prevent or discourage it

two elements of the Ellerth/Fragher Affirmative Defense

1. The employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior 2. The plaintiff-employee must have unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm

To Establish a Prima Facie Case of Age Discrimination, the Plaintiff Must Show that he/she was:

1. member of the protected group 2. Qualified for the position from which he/she was discharged 3. Discharged because of age discrimination

To Prevail on a Claim under the ADA, the Plaintiff Must Show That:

1.He/she has a disability 2. He/she is otherwise qualified for the employment in question 3. he/she was excluded from the employment solely because of the disability

13. Generally, the states are immune under the ___ Amendment from lawsuits brought by private individuals in federal court.

11th Amendment

Title VII applies to employers with __or more employees.

15

Affirmative Action

Designed to "make up" for past discrimination by giving preferential treatment to protected classes Equal protection issues - Constitutional only if it attempts to remedy past discrimination and does not make use of quotas or preferences States can prohibit affirmative action programs.

Laws related to gender discrimination

Equal Pay Act Lilly Ledbetter Fair Pay Act Pregnancy Discrimination Act

After-Acquired Evidence of Employee Misconduct

Evidence of employee's misconduct uncovered during discovery in preparation for a defense against discrimination suit Not an absolute defense for employer but can limit damages

T/F Punitive damages for unlawful discrimination under Title VII may be recovered against a private employer under all circumstances.

False

Substance abuse

Former use is considered a disability

Beginning in 1986, Paul Rangel was a sales professional for the pharmaceutical company Sanofi Aventis U.S. LLC (S-A). Rangel had satisfactory performance reviews until 2006, when S-A issued new "Expectations" guidelines with sales call quotas and other standards that he failed to meet. After two years of negative performance reviews, Rangel—who was then more than forty years old—was terminated as part of a nationwide reduction in force of all sales professionals who had not met the "Expectations" guidelines, including younger workers. Did S-A engage in age discrimination?

No, Sanofi Aventis U.S. LLC (S-A) does not appear to have engaged in age discrimination. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination on the basis of age against individuals forty years of age or older. For the act to apply, an employer must have twenty or more employees, and the employer's business activities must affect interstate commerce. To establish a prima facie case, a plaintiff must show that he or she was (1) a member of the protected age group, (2) qualified for the position from which he or she was discharged, and (3) discharged because of age discrimination. If the employer offers a legitimate reason for its action, the plaintiff must show that the stated reason is only a pretext. In this problem, Rangel was over forty years old. But he also had negative sales performance reviews for more than two years before he was terminated as part of S-A's nationwide reduction in force of all sales professionals who had not met the "Expectations" guidelines, including younger workers. The facts do not indicate that a person younger than Rangel replaced him or that S-A intended to discriminate against him on the basis of age. Based on these facts, Rangel could not establish a prima facie case of age discrimination on the part of S-A. In the actual case on which this problem is based, in Rangel's suit against S-A under the ADEA, alleging age discrimination, a federal district court issued a judgment in S-A's favor. On Rangel's appeal, the U.S. Court of Appeals for the Tenth Circuit affirmed, according to the reasoning stated above.

Sexual Orientation Harassment

Not covered by Title VII

Constructive Discharge

Occurs when an employer causes working conditions to be so intolerable that a reasonable person would quit

What is a Disability?

Physical or mental impairment that "substantially limits one or more of major life activities" A record of such impairment Being regarded as having such an impairment

Remedies under Title VII

Plaintiff may receive: Reinstatement Back pay Retroactive promotions Damages

Proving constructive discharge

Plaintiff must prove intolerable working conditions, which employer knew about and failed to correct. Employee's resignation is a foreseeable result of working conditions Applies to all Title VII discrimination

Procedures under the ADEA

Plaintiff must show discrimination was the reason for adverse employment action.

Title VII of the Civil Rights Act

Prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. (Sex now includes pregnancy) (Applies to employers involved with interstate commerce with 15+ employees)

Walter tells Irene that he will give her a raise if she agrees to have a romantic relationship with him. In legal terms this is known as .

Quid pro quo harassment

Sexual Harassment

Quid pro quo harassment Hostile-environment harassment

When labor practices discriminate against those in the majority it is called

Reverse discrimination

Quid pro quo harassment

Sexual favors are demanded in return for job opportunities, promotions, salary, increases, etc.

Business Necessity

The employer must demonstrate a job qualification is reasonably necessary tot he legitimate conduct of the business. For disparate impact discrimination

T/F In 2011, the United States Supreme Court limited the rights of employees to bring discrimination claims against their employers as a group in the form of a class action lawsuit.

True

T/F In a retaliation claim, an individual asserts that she or he has suffered harm as a result of making a charge, testifying, or participating in a Title VII investigation or proceeding.

True

Hostile-environment harassment

The workplace has discriminatory intimidation, ridicule, or insults so severe as to alter the conditions of the victim's employment and create an abusive working environment

Reverse discrimination

Title VII also protects against discrimination against majority group individuals, such as white males

The most important federal statute prohibiting employment discrimination against members of a protected class is

Title VII of the Civil Rights Act of 1964 ...is considered the most important federal statute dealing with employment discrimination, not the Equal Pay Act or the Americans With Disabilities Act or the Age Discrimination Act. See Title VII of the Civil Rights Act of 1964.

Discrimination Based on Race, Color, and National Origin

Title VII prohibits employment policies or intentional/negligent discrimination on basis of race, color or national origin.

Procedures Under the ADA (American Disabilities Act)

To prevail, plaintiff must show: A disability She is otherwise qualified for the employment in question She was excluded from employment solely because of the disability Plaintiff must first exhaust her claim through the EEOC process

T/F Constructive discharge occurs when the employer causes the employee's working conditions to be so intolerable that a reasonable person in the employee's position would feel compelled to quit.

True

T/F Drug addiction is considered a disability under the ADA, but the act does not protect those who are actually using illegal drugs.

True

Is Jake correct when he says that what is relevant is the "experience not the age"?

Yes, generally the law requires that employers focus on issues relevant to the job only. *** If Jake is not the best candidate, or is not qualified, a business necessity defense would allow Jake not to be hired. By brining age in to consideration Herman is exposing himself to an ADEA claim. Since it is irrelevant, generally that is not an acceptable question at an interview and could lead to an ADEA claim or other tort actions.

During the 1960s, all federal and state government agencies, private companies contracting to do business with the federal government, and institutions that received federal funding were required to implement ___policies.

affirmative action

Potentially, the most widespread form of discrimination is

age

Same-gender harassment

also prohibited

After-acquired evidence of an employee's wrongdoing, or misconduct, is:

at best only a limitation on an employer's liability for employment discrimination

In an age discrimination lawsuit, the employee has the burden of establishing ___ causation

but for

Melissa works as a computer data-entry operator at VeraSign. Melissa informs VeraSign that she suffers from carpal tunnel syndrome, causing pain in her wrists rendering her unable to use a keyboard. Melissa requests as an accommodation that VeraSign hire a data-entry employee to enter the information on her behalf. VeraSign refuses to do so. VeraSign has

c. not violated the ADA because the requested accommodation is an undue hardship on the employer.

Milford is 55 and works for a company covered by the ADEA of 1967. He wishes to bring a claim of age discrimination because he was replaced by a younger, lower-paid worker. To make out a prima facie case, Milford does NOT have to establish that he

c. was replaced by someone who is below the age of 40. **While he doesn't have to prove that he was replaced by someone below the age of 40, the bigger the age gap, the more likely the dismissed individual is to succeed in showing age discrimination. See Discrimination Based on Age.

Many affirmative action cases that have reached the Supreme Court recently have involved

university admissions programs.