Managing the WF TMGMT 430 Ch 3

Regulatory Issues and Competitive Advantages

A company must not get so caught up in regulatory issues it loses sight of its purpose as a business. A business needs the right people on the bus and in the right positions. Do not keep employees who are not right for the company or for the positions. It creates organizational dysfunction.

MdDonnell Douglas Test

A four-step test used to make a case of disparate treatment

Alternative Dispute Resolution (ADR)

A process for resolving disputes among employees and employers using a mediator or an arbitrator.

Harassment can take the form of the following: A. All of the above B. Age-Based Harassment C. Sexual Harassment D. Religious Harassment E. Racial Harassment

A. All of the above

Gender-Plus Discrimination Example

An employee would be treated differently had it not been for the employee's gender. Ex: Employer refuses to hire women with pre-K children; however, hires men with pre-k children = Gender Plus Discrimination... this is the "But for" their gender issue. Personality and appearance can be factors in gender-plus discrimination. 1982 Price Waterhouse V. Hopkins Female associate denied partnership due to some of firm's partners not liking the use of her profanity, masochistic behavior, and aggressiveness. She has exemplary record. This attitude continued even though she played a critical role in securing a multi-million dollar contract for the company. She had been lauded as "an outstanding professional", and clients found her to be capable. Her aggressiveness did upset some coworkers and partners. After being denied partnership despite her qualifications she filed a sex discrimination lawsuit against the firm. She charged she would have been treated differently had she been a male. The court found gender based discrimination had occurred as a male behaving as she had would have likely been made a partner. The firm found her behaviors as unfeminine and, therefor, refused to partner with her. "But for" her gender, she would have been made partner if she was a man.

Gender Discrimination is Sexual Harassment

Any form of gender discrimination is illegal under Title VII. 1986 Case: Meritor Savings Bank v. Vinson (Supreme Court Case). The case made it clear that creating a hostile environment for someone because of their gender was also prohibited under Title VII and constituted sexual harassment. Sexual harassment is a form of gender-based discrimination because the harassment is directed at members of one gender, but not the other. Females are directing the behavior at males but not at other females; males are harassing females, but not other males. Sexual harassment can involve 2 members of the same gender. Example: If a gay male would not be treating a female the same way as another male.

The process of actively seeking to identify, hire and promote qualified members of underrepresented groups is known as A. Adverse Impact B. Affirmative Action C. Disparate treatment D. All of the above

B. Affirmative Action

Wrongful discharge exemptions to the Employment-at-will doctrine include which of the following? In other words, which of the following could constitute wrongful discharge on the part of the employer? A. Firing someone because they were called up for jury duty and wanted to participate B. All are wrongful discharge exemptions C. Firing someone because they were due to be given a bonus D. Firing someone for refusing to commit a white-collar crime

B. All are wrongful discharge exemptions

Bona Fide Occupational Qualifications (BFOQ)

Business necessity, and discriminatory practices such as disparate treatment, disparate impact, harassment, and retaliation

After Jan filed a lawsuit against her employer for sexual harassment, she was fired. This is an example of which type of action on the part of the employer? A. Mixed motive treatment B. Non-BFOQ discrimination C. Retaliation D. Unfair treatment

C. Retaliation

The court case that identified disparate impact as discrimination was: A. McDonnell Douglas Corporation v. Green B. Duke Power v. Griggs C. Griggs v. McDonnell Douglas Corporation D. Griggs v. Duke Power Company

D. Griggs v. Duke Power Company

Office of Federal Contract Compliance Programs (OFCCP)

The federal agency responsible for developing guidelines and overseeing compliance with anti-discrimination laws relative to executive orders.

Fair Employment Practices

These laws are often more stringent than the Fed gov regulations. Whatever the more stringent regulations are (state or federal) the more stringent one is to be followed. Regulations for each state are readily available online from each state's labor department.

EEOC defines Sexual harassment to include but not limited to:

Unwelcome Sexual advances, request for sexual favors, and other verbal and physical conduct of sexual nature: 1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; 2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or 3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Gender Based Discrimination Example

Use of a person's gender as the basis for an employment decision. Ex: Open position as Sales Associate at Car Dealership. Managers will not consider women. Want men instead because they know more about cars (stereotype). Managers will not consider women for position due to stereotype = Discrimination based on Gender.

Disability

a physical or mental impairment that substantially limits one of more major life activities. Individuals who have a record of such impairment or who are regarded as having such impairment are also covered. Major life activities: Caring for self, performing manual tasks, breathing, walking, eating, and similar activities as ell as the operation of major bodily functions such as the immune system. Part of 2008 amended ADA.

Reverse Discrimination

a type of discrimination in which members of a protected group are given preference in employment decisions resulting in discrimination against non-protected groups. However, if two parties - one minority and one not - are equally qualified and the company is an affirmative action employer, hiring the minority applicant may be appropriate

Business Necessity

an employment practice that has some relationship to legitimate business goals and is essential to the company's survival.

Companies headquartered in other countries

but doing business in the US are generally bound by US EEO laws. The exception to this requirement occurs when there is a binding international agreement or treaty in effect that states otherwise. If such an agreement or treaty exists, the international company is not bound by US EEO laws and can give hiring preference to citizens of their own country. US employers operating abroad have a responsibility to know the employment laws of the countries in which they are working and to ensure that they do not violate those laws when managing the local country's employees.

Non-compliance with anti-discrimination laws and executive orders

can lead to negative consequences, including fines to the company and charges of discrimination that result in costly, time-consuming legal battles. Ex: July 2017 Bass Pro Outdoor World settled a lawsuit brought by the EEOC in September 2011 for passing over African-American and Hispanic job applicants for years because of their race or national origin. Further charges claimed that Bass Pro unlawfully retaliated against employees who raised concerns about this widespread pattern of discrimination and noted that the company failed to keep appropriate hiring records. While not admitting liability, Bass pro agreed to pay $10.5 Million and to hire a director of diversity and inclusion.

Religious Harassment

occurs when employees are subjected to a hostile work environment because of their religious affiliation. Another issue for companies is the extent to which employees can express religious beliefs at work. Employers are obligated to make reasonable accommodation for employee's religious beliefs unless doing so would result in undue hardship for the employer. If an employer allows employees to keep personal books on their desks to read during breaks, the employer would have to allow an employee to keep a Bible or a copy of the Koran on the employee's desk to read during breaks. Religious organizations are permitted to use religion as a BFOQ for certain positions. If a professor at a church-affiliated university is teaching a course based on the religious principles of the denomination with which it is affiliated, the university may specify that the person hired must be a member of the university's religion. But it would be hard to make a case that the custodial staff or clerical staff at the same university had to be members of that particular religion.

Executive Order 11246 (EO 11246)

signed into law in 1965 to prohibit discrimination based on race, color, religion, sex, or national origin. Sexual orientation and gender identity were added as protected classifications in 2014. EO differs from Title Vii in to whom it applies to. It applies specifically to federal contractors and subcontractors. Most of which have to abide by Title VII regulations. The biggest difference is EO 11246 specifically requires federal contractors and subcontractors to put into place affirmative action programs.

Affirmative Action

the process of actively seeking to identify, hire, and promote qualified members of under-represented groups.

Disparate Treatment

Disparate Treatment: Treating individuals differently in employment situations because of their membership in a protected class. It can be obvious or intentional in nature. Not hiring a qualified woman because she is female is obvious and intentional discrimination. The intent to discriminate and a BFOQ for that characteristic does not exist is Disparate Treatment.

Equal Employment Opportunity Laws & Exec. Orders: Regulation: Sections 102 & 103 of the Civil Rights Act of 1991 (CRA 91)

Provisions: Clarifies the defense in disparate impact cases, provides for monetary damages in cases of intentional discrimination, and eliminates race norming. Covered Employees & Enforcement Agency: Same as Title VII of the Civil Rights Act of 1964. Enforced by EEOC.

3. Show the decision results from a bona fide seniority system.

The bona fide seniority systems is a third defense that companies can offer. Seniority systems give employees rights based on their length of time with the company. Rights can include opportunities for better working hours, for instance. A bona fide seniority system is one that is officially sanctioned by the organization. To successfully use this defense, the employer must show that the seniority system has been in effect for some time and was not created to keep certain protected classifications from being eligible for the job in question. Most union contracts include seniority systems.

According to the Equal Pay Act, employers are permitted to pay workers performing the same job different pay rates when the differences are: A. based on anticipated lifespan of the worker B. based on merit, seniority or quality or quantity of production C. based on demographics D. Employers can never use differential pay rates

B. based on merit, seniority or quality or quantity of production

Harassment

Harassment occurs when employees are subjected to unwanted and unwelcome treatment because of their race, color, religion, sex, national origin, age, disabiity, or genetic information. This can include but not limited to: Offensive jokes, unwelcome comments related to a person's protected class, graffiti targeting the protected class, and physical threats. Because of the harassment, employees experience a hostile work environment.

Females, and not males are a protected class under EEO laws. True or False

False Men are also protected under EEO laws.

Ron refuses to hire Maria after she applies to his restaurant to be a server because she is pregnant and he feels as though a pregnant women should not wait on people and carry trays. This is perfectly legal and justified. True or False

False This is illegal under the Civil Rights Act of 1964. It is considered gender discrimination.

The ADEA (Age discrimination in Employment Act) protects people who are under age 21 and above the age of 40. True or False

False People under age 21 are not protected by the ADEA.

A useful way to thing about the difference between disparate treatment and disparate impact is that disparate treatment focuses on the consequences of the price and disparate impact focuses on the motivation of the treatment. True or False

False: It is the opposite. Disparate treatment focuses on the motivation of the action and disparate impact focuses not on the motivation, but on the outcomes or consequences of the actions.

Types of Discrimination covered under Title VII

Type of Discrimination & Common Example: 1. Race & Color: Not hiring dark-skinned applicants because they don't fit the company image. Use of race itself or race-related characteristics and conditions to make employment decisions, tolerate the harassment of employees because of their race or color, segregate or classify employees based on race or color, or collect pre-employment information about race in such a way that is available to those making the hiring decisions is a violation of Title VII. 2. Religious: Requiring a Seventh-Day Adventist to work on Saturday. 3. Gender: Providing males with different benefits than females receive. 4. National Origin: Giving preferential treatment in employee decisions to individuals born in the United States.

Vietnam Era Veteran's Readjustment Act 1974

provides employment protection for Vietnam-era veterans, special disabled veterans, and other veterans who served on active duty during a war or recognized military campaign. Employers with federal contracts or subcontracts of $25K or more are required to give equal opportunity and affirmative action to this group of protected class individuals. Affirmative action under this act includes listing all job openings with the local state employment service, with the exception of top management and executive positions, positions of less than three days' duration, and positions to be filled internally.

Examples of Reasonable Accommodations

1. providing a sign language interpreter for an interview with someone who is deaf. 2. Changing the design of store displays so that a sales associate in a wheelchair can have access to do his/her job. 3. Reallocating a nonessential task, such as occasionally taking boxes to a storage room, for an employee with a back problem to another employee and replacing it with a different task. 4. Allowing an employee to work from home if doing so will not create an undue hardship on the employer.

CH 2 described 2 sets of HR challenges: Organizational Demands and Environmental influences, affect employee management. CH 3 gives a 3rd: Regulatory Issues and its extensive impact on employee management practices.

Employment regulations focus on the fair treatment of individuals in the workplace. They require employers to concentrate on the qualifications of the individual that they employ rather than gender, nationality, or other characteristics not related to an applicant's or employee's ability to perform the job.

Fair Labor Standards Act (FLSA)

FLSA of 1938 had established general guidelines for employee pay, but the EPA specified that gender could not be a factor in paying employees. Today, if a male and a female in the same company are performing job that require substantially equal skills, effort, and responsibility and that have similar working conditions, the law requires the employer to pay them equally. Pay differences for employees in the same job are allowed if they are based on merit, seniority, quality or quantity of production, or another nongender-related factor, such as night shifts versus day shifts. It is up to the employer to prove that the stated reason for the pay difference is an allowable affirmative defense.

The ADA requires that you hire disabled people even if they are not qualified for the job. You must make every effort to train them as long as it doesn't cost more than $1000. True or False

False

Under IRCA (The Immigration Reform and Control Act) you must hire legal immigrants if they are qualified for jobs. True or False

False

Charlie is a sports team owner for child athletes and he doesn't want to waste his time training child athletes that may have known genetic conditions. So, as a means of selection he requires his applicants to be genetically tested before he is willing to employ them. Given that physical fitness is a BFOQ, this is perfectly legal. True or False

False According to Title I of the Genetic Information Nondiscrimination Act of 2008, this is illegal.

Equal Employment Opportunity (EEO)

Laws and other regulations related to fair treatement of employees. EEO is the term used to describe laws, regulations, and processes related to fair treatment of emplyees.

Mixed Motive

Mixed motive is a legitimate reason for an employment decision exists, but the decision also was motivated by an illegitimate reason. The courts have been clear that even though an employer may have had a job-related reason for a decision, discrimination has occurred if protected class membership played any part in the outcome. In other words, a mixed motive has affected the outcome.

Prima Facie Case

Preliminary case using the McDonnell Douglas Test. After McDonnell Douglas Corp v. Greene in 1973 US Supreme Court case which identified a four-step test. To make a case for disparate treatment, the plaintiff must show all of the following: 1. He or she is a member of a protected class. He or she applied for the job (or other employment opportunity, such as being eligible for a raise or promotion) and was qualified. 3. He or she was rejected. 4. Someone else got the job, or the employer continued to seek applications from individuals with the plaintiff's qualifications. If the plaintiff is successful making a prima facie case, the burden of proof shifts to the employer to provide a legitimate, job-related reason for the decision. EX: employer might show that the person selected had more relevant experience or performed better on selection measures. Courts have stated, if a protected class has affected an outcome even though an employer may have had a job-related reason for the decision it is still considered Disparate Treatment. Prima Facie Case is establishing the basis for a case of discrimination.

Equal Employment Opportunity Laws & Exec. Orders: Regulation: Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

Provisions: Prohibits discrimination against employees or applicants because of genetic information and restricts requesting, requiring, or purchasing genetic information, as well as disclosing such information. Covered Employees & Enforcement Agency: Same as Title VII of the Civil Rights Act of 1964. Enforced by the Department of Labor's Employee Benefits Security Administration

Retaliation

Retaliation occurs when an employer takes an adverse action against an employee who has filed a discrimination complaint. Retaliation is often a punishment, or a threat of punishment, because an employee exercises the rights provided under the anti-discrimination laws. Retaliation can take on many forms and not limited to the following: 1. Denying a promotion to the employee who is otherwise qualified 2. Demoting the employee 3. Suspending the employee for a period of time. 4. Writing a negative evaluation of the employee and/or 5. Threatening the employee if the complaint is not withdrawn. If any of these actions are taken the manager is committing discrimination against the employee.

What if a settlement, concilation, or mediation efforts are not successful? What happens?

The EEOC will decide if they are going to sue the employer on the individual's behalf. If EEOC decides to not sue, the employee has 90 days to file a lawsuit of their own against the company.

Compliance for anti-discrimination executive orders is under the jurisdiction of?

The OFCCP. Employers are required to not discriminate and to make concerted efforts to bring under-represented groups into the workplace, and to help them advance once hired

In an at-will state you can fire someone for any reason including if you disagree with their religious values. True or False

False

Main provisions of ADAA of 2008

1. Clarified "substantially limits" is to be interpreted broadly, thus allowing for more expansive coverage. 2. Requires an individualized assessment of whether an impairment substantially limits a major life activity. 3. Specified mitigating measures, except eyeglasses and contact lenses, should not be considered when assessing if an individual has a disability. 4. Clarified episodic impairments or those in remission were a disability if they substantially limited a major life activity when active. 5. Changed the definition of "regarded as" to mean person is disabled if subject to an action prohibited by ADA based on non-minor, non-transitory impairment. 6. Noted that individuals covered under "regarded as" are not entitled to reasonable accommodation.

Affirmative action exist for one of three reasons

1. Comply with EO 11246 2. Any employer can decide to engage in affirmative action, even if not required to do so by law. This program exists out of the goodwill of the employer, the belief that affirmative action is the right thing to do, and the belief that it can help the company prosper in the long run. 3. Companies may have affirmative action programs resulting from a court-ordered consent decree. This type of decree results from a court finding an employer is guilty of discriminating against a protected group in its employee management practices. In such cases, the court will identify what the employer needs to correct and for how long the decree is in effect.

Affirmative action plans under the EO 11246 are periodically reviewed by the OFCCP and require the company to engage in three activities

1. Conduct a utilization and availability analysis 2. Identify goals and timetables. 3. Develop and implement an action plan

EO 11246 requires Federal Contractors doe all of the following:

1. Ensure the job application process and subsequent employment experience are not based on race, color, religion, sex, or national origin. 2. Conspicuously post notices from the OFCCP describing the provisons of the nondiscrimination clause in EO 11246. 3. Provide notices to labor unions or other groups with whom the employer has a collective bargaining agreement. 4. State on all job advertisements that the company is an EEO, affirmative action employer.

Examples of race and color discrimintion by employers in violation of Title VII

1. Using race or race-related characteristics and conditions to make employment decisions. A "no-beard" policy may discriminate against African-American men because they are predisposed to a medical condition that makes shaving difficult. Selecting only light-skinned employees because they fit the preferred company image is discrimination on the basis of skin color. 2. Tolerating the Harassment of Employees Because of their Race or Color: Permitting racial slurs and racist graffiti creates a hostile working environment. Making derogatory remarks about an employee's skin color and then firing the employee for complaining to management is a violation of Title VII. 3. Segregating or Classifying Employees Based on Race or Color: Assigning racial groups to work only in areas where the customer base is predominantly of the same racial group is discriminatory. Assigning employees of a certain racial group exclusively to work in certain jobs in the company is also discriminatory. 4. Collecting Pre-Employment Information About Race in Such a Way that is Available to Those Making the Hiring Decisions. Asking for information that would identify race as part of the pre-employment process is not permissible. Coding applications or resumes so that the interviewer knows the race of applicants is another example of illegally classifying employees. 5. Dismissing an Employee because of his or her association with someone of a different race. Learning that an employee has a biracial child and using that information to discriminate against him or her in the terms and privileges of employment is discrimination. Finding out an employee is part of an organization that supports minority rights and using that information against her or him in the employment decision process is also a violation of the law.

Employee steps if a company violates employment law:

1.) Go to eeoc.gov, find district, field area, and local office to file a complaint or contact your state's Fair Employment Practices Agency (they work closely with EEOC). 2. Charges should be filed within 180 days from the occurrence of the alleged violation (Time could be extended to 300 days under limited circumstances). 3. EEOC will review it and decide if it warrants investigation. 4. EEOC, if deemed appropriate, will investigate and collect as much factual information as possible about the allegation. At any point the EEOC can seek to settle with the employer. 5. If a settlement is not reached and if the investigation indicates discrimination occurred, the EEOC will try to work with the employer for conciliation (conciliation is a voluntary, less formal, and less costly process to resolve discrimination). 6. EEOC may select a formal Mediation program.

Pregnancy Discrimination Act of 1978 (PDA)

1978 PDA passed as an amendment to Title VII. Prohibits employers from discriminating against women due to pregnancy, childbirth, or a related medial condition. Co cannot refuse to hire a woman because she is pregnant, nor can an employee fire a woman because she is pregnant. Employer must treat/handle pregnancy as any other medically relation condition or temporary disability of an employee. If employer modified work tasks for an employee with a broken leg (temp disability), they would have to do same for pregnant employee if needed. In addition PDA spells out employer requirements regarding benefits. Co health insurance plans cannot exclude pregnancy. Employers are required to provide the same health coverage to spouses of male employees as they do to spouses of female employees. Companies have to provide the same benefits & Privileges to pregnant employees, regardless of marital status, that they would provide to other employees who are temporarily disabled.

Janice and Peter applied for a job as a maintenance supervisor at a manufacturing plant. Janice had the most experience and met all of the qualifications for the job. She was turned down for the job. Peter, a man who had three less years of experience, was hired. Janice can make a prima facie case of: A. disparate treatment B. sexual harassment C. hostile environment D. disparate impact

A. disparate treatment

An example of a BFOQ for a job would include all BUT which of the following? A. Requiring a receptionist be a female B. Requiring a model to be a man to advertise men's dress suits C. Requiring a secretary to be able to type D. Requiring mandatory retirement ages for airline pilots

A. Requiring a receptionist be a female

Americans with Disabilities Act of 1990 (ADA) & ADA Amendments Act of 2008 (ADAA)

Act applies to companies with federal contracts over $10K and is administered by the OFCCP. The OFCCP is part of the Dept. of Labor's Employment Standards Administration and is Tasked with administering regulations for federal contractors. Companies covered by this act are required to affirmatively seek and hire qualifed individuals with disabilities. OFCCP revised regulations for Section 503 of the Vocational Rehabilitation Act in 2014 to strengthen the affirmative action and non-discrimination responsibilities of federal contractors. Applies to all employers with 15 or more employees. 2010 Census reported 1 in 5 people in the US has a disability. Qualified is a key work in the ADA and in other employment laws. Qualified is having the knowledge, skills, and abilities or other characteristics required to perform a job. Qualified in terms of indiviudals with disabilities are qualified employee or appliant with a disability is an individual who with or without reasonable accommodation, can perform the essential functions of the job. Amended in 2008 by Supreme Court Rulings perceived as diminishing the intent of the original ADA. There are a number of issues which are left open to interpretation. Example: Individuals covered if they had medial or corrective devices that compensated for their disability? Does a disability automatically mean that you are covered by the Act if you cannot do a particular job but can do other jobs? President GW Bush signed into law the ADA Amendments Act of 2008 (ADAA). Made it easier for individuals to establish the existence of a disability.

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

Company, Founders Pavilion, a nursing and rehabilitation center in Corning, NY. Used family medical information which is illegal. They had to pay 138 people $110,400 to settle discrimination cases. Title II of the GINA is designed to prevent such genetic discrimination from happening. It prohibits employers from using genetic information for making employment decisions, prohibits employers and other covered organizations from requesting or otherwise acquiring genetic information about applicants or employees. There are times when an employer may have access to genetic information, such as family medical history, but GINA strictly limits the employer's use and disclosure of such information.

An employer may be in violation of the if they refuse to hire a person in a wheel chair who is qualified to perform the essential functions of the job with minor accommodations that will not pose an undue hardship to the employer A. FMLA B. EPA C. IRCA D. ADA

D. ADA

The agency that oversees the anti-discrimination laws such as the Civil Rights Act for private companies without federal funds is the: A. Department of Labor B. Office of Federal Contract Compliance C. Civil Rights Commission D. Equal Employment Opportunity Commission

D. Equal Employment Opportunity Commission

Not promoting a female because she is perceived as being too masculine is an example of which type of gender discrimination? A. sexist discrimination B. disparate impact C. quid pro quo harassment D. gender-plus discrimination

D. gender-plus discrimination

Over the past six months, Omar has been subjected to frequent comments about his religion by his co-workers. He has asked them to stop, and even reported them to his supervisor (who did nothing). Omar is experiencing a _______________________________ work situation. A. mixed motive B. disparate impact C. retaliation D. hostile environment

D. hostile environment

Ehsan has asked to arrange his schedule so that he can fulfill his religion's requirement for prayer at certain times of the day. He is willing to work a longer shift to make up for the time he will miss during the day for prayer. For his employer to legally refuse to make this accommodation, the employer would have to show that accommodating Ehsan's request causes the company: A. disparate impact B. adverse impact C. disruptive context D. undue hardship

D. undue hardship

The process that leads to the passage of an EEO law and what happens following passage of such a law:

Development and Implementation of EEO Laws: 1. Congress lobbied to address societal or economic problem. 2. Law passed to address problem. 3. Enforcement agency designated to overseee compliance with law. 4. Agency develops and communicates guidelines and regulations. 5. Employers comply. 6. Courts hear cases of violations of law or issues of interpretation.

Discrimination

Discrimination is treating people differently in employment situations because of characteristics, such as race, color, and gender, that have nothing to do with their ability to perform a particular job. Discrimination is treating people differently. EEO laws exist on the federal, state, and local levels and are created following the same basic model as other laws.

EEOC basic guidelines for employers to follow to reduce the incidence of sexual harassment in the workplace:

Discrimination on the basis of national origin can take the form of harassment disparate treatment, or disparate impact, and result from: 1. Treating an individual differently from others in employment situations because of his/her ancestry, ethnicity, or accent; 2. Treating an individual differently because he/she is married to or associates with someone of a particular nationality; and/or 3. Assuming that a person is of a particular national origin because of physical linguistic, or cultural traits associated with an ethnic group.

FMLA of 1993, & 2008

Employers with 50+ employees in a 75-mile radius to grant up to 12 weeks of unpaid leave to an employee who needs to take time away from work because of their own illness, to care for a sick immediate family member (child, spouse, father, mother) but not including their spouse's immediate family and for the birth, adoption, or foster care of their child. Employees must have completed 12 months of employment and worked 1,250 worked hours. Family members of soldiers who are on or about to go on active duty for any qualifying exigency and those who are caregivers to wounded service members. This provision extends leave eligibility to a spouse, son, daughter, or next of kin for up to twelve weeks of unpaid leave. As of 2015, same-sex spouses, are included if they are legally married. Prior approval for leave is required to count as FMLA. The employer can permit or even require its employees to designate vacation or sick leave time as FMLA so they receive pay during at least a portion of 12 weeks. Leave may be taken intermittently throughout a 12-month period. Except in the case of key employees, the law requires that the employer provide the same or an equivalent job for the employee when he/she returns from FMLA. Equivalent refers to both pay and duties. Key employees are those whom absence could lead to substantial and grievous economic loss to the company.

Two regulatory agencies oversee compliance with the equal employment regulations:

Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP)

2. Demonstrate the practice is a business necessity.

Ex: A strenuous physical-ability test as a job requirement for a firfighter might have disparate impact for women, but it is a business necessity for fire departments. Firefighters must be physically fit and capable of lifting heavy loads, such as fire hoses and people. A FD can readily show that passing the test is a strong predictor of Firefighter safety on the job.

1. Provide evidence that the practice is job related.

Ex: Requiring a pilot's license for a job as a first officer for a commercial airline would be job related, even if it meant that certain protected classes would be less likely to be hired for the job.

Ways in which the language requirements used by employers can lead to national origin discrimination, identified by EEOC

Examples of some of the ways discrimination occurs: 1. Accent Discrimination Making an employment decision based on an applicant's or employee's accent when the accent does not interfere with job performance. 2. Fluency: Requiring fluency in English or a foreign language when such is not required for effective job performance. 3. English-Only Rules: Having a rule that employees must speak English when it is not essential for the safe or efficient operation of the business.

Discriminatory Practices can be groped under one of the four categories

Four Categories are: Disparate Treatment Disparate Impact Harassment Retaliation

Four-Fifths Rule

Four-Fifths Rule is a guideline generally accepted by the courts and the EEOC for making a prima facie case of disparate impact by showing that an employment practice results in members of a protected class being treated less favorably by an employment practice than members of a non-protected class. To make a case for disparate impact, the plaintiff must first demonstrate that the outcome of the employment practice was less favorable for his or her protected class than for the majority. The 4/5th rule is a guideline generally accepted by the courts and EEOC for making such a prima facie case of disparate impact. Ex: Co is expanding and needs to hire multiple people for the same job. You place an advertisement in the local newspaper and 475 people apply for the 38 openings. Some applicants are white, and some are Asian. A selection criterion used in the hiring process requires passing a test written in English, even though English was not listed in the advertisement as a job requirement. After co. completes its hiring process and fills the 38 slots, several Asian applicants express concern that they were not selected for the job even though they were qualified. Follow 4/5ths Rule: # hired from each group/total applicants from each Asian Applicants= 120 # Hired= 7 Ratio: 7/120=5.8% White Applicants= 355 # Hired=31 Ratio: 31/355=8.7% Then: Selection Rate for Asian / Selection rate for whites 5.8%/8.7%= 67% 67% is less than 80% (desired 4/5ths rate). Due to 67% below the 4/5th threshold, evidence of disparate impacts exists.

Employment at Will

Hiring provisions based on state laws that allow employers to terminate, hire, or transfer employees at any time and allow employees to quit at any time. There is no contractual obligation to which either an employee or the employer must adhere. Either party can terminate the relationship at any time for any LEGAL reason!. Wrongful discharge and terminating an employee for illegal reasons or for the reasons that the courts have found to be inappropriate for discharge are known as exceptions to the employment at will doctrine, or common law claims. Not every state recognized all 3 exceptions to the employment at will doctrine (Florida, Georgia, & Rhode Island). A list of the exceptions and the number of states recognizing each follows: Public Policy Exception: an employee can sue if they were fired for a reason that violates public policy that is if the company acted in bad faith, malice, or retaliation. Serving on jury duty, refusing to violate one's code of professional ethics, and refusing to commit a white-collar crime at the company's urging are examples. The public policy exception is recognized by 43 states. Implied Employment Contract: An implied contract is one that is inferred (orally, written, or otherwise) by the condct of the parties involved. Telling employees they will not be fired so long as they do their jobs is an example. Policies printed in corporate employment manuals can constitute implied contracts, too. The implied contract exception is recognized by 42 states. Implied Covenant of Good Faith and Fair Dealing: Employers have an implied contractual obligation to act in good faith toward their employees, and vice versa If an employee has been promised a bonus and then is fired so the company does not have to pay the bonus, the company will not have acted in good faith and fair dealing. The covenant of good faith and fair dealing exception is recognized by only 20 states.

Civil Rights Act of 1964 (CRA 64)

History: Blacks & to an extent Hispanics- Etremely disadvantaged economically, education was segregated, Black schools traiditionally lower in quality than white schools, segregated workplace (offers low level & low paying jobs). Understand why Blacks had little money and few opportunities to improve their quality of life during that time in history. Low Income led to reduced buying power, which led to reduced production, which led to fewer jobs. A segregated society led to the need for duplicate facilities, such as schools and other public services, as well as duplicate spaces in the workplace, such as cafeterias and restrooms. Money that could have been used for increased wages and in other productive ways was used to keep people segregated. Title VII further states that it is against the law for an employer to discriminate with regard to selection, termination, compensation, terms and privileges of employment, promotion or transfer of employees, work assignments, and any other activity related to employment. Remember the law does permit the use of religion, sex, and national origin as a BFOQs, but only when necessary for the normal operation of the business. The EEOC provides oversight of Title VII for all covered entities except the federal government. The Office of Special Counsel and the Merit Systems Protection Board oversee discrimination issues related to federal employees. The OFCCP oversees compliance by federal government contractors.

Hostile Work Environment

Hostile work environment exists whenever an employee is the subject of unwelcome harassment because of his or her membership in a protected class, and that harassment is severe and abusive. Case: Olympia Construction in Alabama: 3 former employees of OC were subjected to racial slurs and intimidation and then were fired because they complained about their treatment to the EEOC. Settling the suit, EEOC required the co. to pay $100k to the former employees and put in place policies and practices to ensure that future harassment and retaliation do not occur.

Immigration Reform and Control Act of 1986

In an attempt to control unauthorized immigration to the US and to provide anti-discrimination provisions. Employers with 4+ employee are prohibited from using national origin or citizenship as a basis for their employment decisions. This law provides protection against national origin discrimination to a group not covered by Title VII - Employees in firms with 4-14 employees. Employers are responsible for verifying all employees they hire have the legal right to work in the US. Employees complete INS Form I-9 (Employment Eligibility Verification) and by collecting the specified documentation that verifies their identities. To prevent discrimination on the basis of citizenship, employers are encouraged to wait until after a job offer has been made to request the Form I-9 be completed. INS enforces the IRCA. Employers who hire workers who are not eligible to work in the US can be fined, debarred from government contracts, receive criminal penalties, and be ordered by the courts to hire the individual who was discriminated against, give back pay to the individual, or both. US Immigration and Customs Enforcement (ICE) agents or auditors inspect Forms I-9 for compliance. Employers found to have technical or procedural violations are given 10 days to make corrections and may be fined. Employers who knowingly hire or continue to hire unauth. workers must cease the activity, may be fined, and can be criminally prosecuted. Fine is based on the size of the business, good faith efforts to comply with the IRCA, history, seriousness of violations, and if unauthorized workers were involved. The penalty is from $110- $16,000 per violation.

Civil Rights Act of 1964

Late 1980's Congress revisits civil rights (CR) issue in the WP. Amend CRA 64. CRA of 1991 (CRA 91) was needed to "strengthen and improve federal civil rights laws to provide for damages in cases of intentional employment discrimination, to clarify provisions regarding disparate impact actions, and for other purposes." CRA 91 strengthened Employee Rights: 1. It clarifies the burden of proof in disparate impact cases. After the plaintiff shows that a particular employment practice has disparate impact, the burden of proof is on the employer to show that the practice is job-related and is consistent with business necessity. 2. It addresses Rights of U.S. employees working abroad. CRA 91 specifies that US citizens working outside the country for US employers are to receive the same equal employment protections as employees working within the US under Title VII of CRA 64. 3. It prohibits race norming Companies cannot use lower cutoff scores or otherwise adjust the outcome of employment-related tests based on race, religion, gender, or national origin to give minority groups an advantage. 4. It eliminates the use of the mixed-motive defense in disparate treatment cases. CRA 91 makes explicit that employers cannot defend their discriminatory actions in disparate treatment cases by arguing that the outcome would have been the same because of some additional reason, even if the protected class had not been a consideration. 5. It allows jury trials and damage awards. CRA 91 provides plaintiffs with the option for a jury to decide discrimination cases and permits punitive and compensatory damage awards in disparate treatment cases. Punitive awards are paid to address the harm caused by discrimination done with malice and reckless indifference to legal rights. Compensatory damages under CRA 91 are not to compensate for back pay and related costs, but rather to compensate for emotional damage and other anguish caused by the discrimination. Punitive and Compensatory damages under CRA 91 are not to exceed $300k.

Reasonable Accommodation

Making modifications in how the work is done or in the work environment so that someone who is qualified for the job and who has a disability can perform the job. Might include restructuring a job, modifying work schedule, acquiring or modifying equipment, or making existing facilities easily accessible and usable for someone with a disability. 50% of accommodations cost $500 or less, Median cost: $240, 1/5 cost nothing. Tax incentives often offset the cost to the employer. Some wonder if employing individuals with disabilities raises the costs of benefits or creates workplace safety issues for a company. Research shows they are unaffected.

EEO Responsibilities of Multinational Employers

Managers need to consider several questions regarding multinational corporations and employee law: 1. Do the U.S. EEO laws apply to employees of US companies in other countries? 2. What are the responsibilities of US companies operating abroad relative to the laws of those countries? 3. DO non-US companies operating in the US have to follow US equal employment laws? Employees of US companies who are working for US companies in other countries are covered by TItle VII, the ADA, and the ADEA. You may remember that we noted this coverage as one of the provisions of the CRA 91 US employers are not required to abide by these laws, however, if doing so would result in the company violating a law of the country in which the workforce is located. This situation provides employers with a foreign law defense. Example: if a country has a mandatory retirement age law, the US employer has to honor that law. The US employer is not permitted to transfer an employee to another country to keep the company from having to treat the employee in accordance with the US EEO laws. An employer cannot purposefully send an employee to a country that has mandatory retirement age law to force the employee to retire.

EEOC identified 2 types of sexual harassment:

Most straightforward type is called 1. Quid Pro Quo Harassment: "Something for something". When this type of harassment occurs, submission to sexual conduct is made a condition of employment, whether explicitly or implicitly. A manager might agree to give an employee a raise or a promotion in exchange for her going on a date with him - no date, no raise. The manager's request constitutes QUID PRO QUO HARASSMENT. 2. Hostile Work Environment Sexual Harassment: It is quite controversial in some instances and more straightforward in others. The challenge arises because what may not appear to be a hostile work environment to one person may appear to be so to another person. Some people are offended by jokes with sexual overtones, while others are not. Whether or not employees might be offended, though, these jokes do not belong in the workplace. Managers have an obligation to take corrective action once they are informed of a potential sexual harassment situation. The EEOC states a company may be guilty of harassment if the company knew, or should have known, about the harassment. A manager who ignores a complaint is allowing a climate to exist that is offensive to an employee in the work unit. If employee files action with EEOC or the Courts, the question becomes if there is a pattern of such behavior in the firm's workplace, and if a reasonable person wuld find the behaviors offensive. In sexual harassment cases which the victim of harassment complains to management and nothing is done, or management should have known about the problem even if the victim did not speak up, the victim will have a better chance at winning the case. Think of #MeToo. The EEOC and COurts respond more favorably to employers who have clearly communicated to employees that behavior of a sexual nature is not welcome in the workplace, and those who have taken immediate and decisive action to investigate and resolve any reports of sexual harassment. A company can improve its chances of defending a case brought against it by showing the plaintiff did not take advantage of corrective and preventive opportunities that it offered. If the company can prove the incident was never reported even though it had clearly defined complaint process and the employee should have been aware of the process, the company will have a better chance of defending its lack of responsiveness.

Equal Employment Opportunity Laws & Exec. Orders: Regulation: The Age Discrimination in Employment Act of 1967 (ADEA)

Provisions: Prohibits employment discrimination of individuals aged 40 or older. Covered Employees & Enforcement Agency: All employers with 20+ employees, including employment agencies and labor organizations; federal, state, and local governments; and school districts. Enforced by EEOC

Are applicants or employees covered under the ADA for illegal drug use or recovering alcoholics?

No. Recovering drug addicts and recovering alcoholics, or drug addicts and alcoholics currently in a treatment program, are covered by the ADA. Companies need to keep all medical information separate from other personnel records to ensure that the information remains confidential and is seen only by individuals who have an absolute need to see it. For instance, a supervisor working to make a reasonable accommodation or an emergency medical technician who is called in to treat an individual for a workplace injury would need to see the information.

Can a business ask an interviewee if they have a disability or ask about a disability?

No. The ADA prohibits employers from asking job applicants whether they have a disability or asking about details of a disability. Managers can ask a candidate if he/she can perform the essential functions of the job. This should be a question asked of all candidates. If there is a job-related reason to require the applicant to take a medical examination, you may do so, but only after you have made the job offer, and only if you require all entering employees in similar medical examinations under the ADA and can be administered per the employer's policy.

Four-Fifths Rule Violation Next steps

Once the plaintiffs make a prima facie case of disparate impact for the particular practice that is discriminatory, the employer can use one of several defenses to support use of the practice: Acceptable Defenses in Disparate Impact Cases: 1. Provide evidence that the practice is job related. 2. Demonstrate the practice is a business necessity. 3. Show the decision results from a bona fide seniority system.

Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA)

Passed after the Gulf War of 1990-1991. It ensures that non-career military personnel can keep their civilian employment and benefits when volunteering for duty or being involuntarily called to duty. Non-career military include individuals in the reserve units of any branch of the uniformed services as well as members of the Natl Guard. It is designed to ensure these individuals can seek employment without being discriminated against, and to encourage others to join the uniformed services non-career programs. With some exceptions, the total length of time a covered individual can be absent from work and retain their employment rights is 5 years.

Equal Employment Opportunity Laws & Exec. Orders: Regulation: Title I of the Americans with Disabilities Act of 1990 (ADA) & ADA Amendments Act of 2008 (ADAA)

Provisions: Prohibits discrimination in employment practices against qualified individuals with disabilities who can perform the job with or without reasonable accommodation. Covered Employees & Enforcement Agency: Same as Title VII of the Civil Rights Act of 1964. Enforced by EEOC.

Equal Employment Opportunity Laws & Exec. Orders: Regulation: Title VII of the Civil Rights Action of 1964 (CRA 64)

Provisions: Prohibits discrimination on the basis of race, color, religion, sex (includes gender identity and sexual orientation), or national origin), or national origin; established the EEOC as an enforcement agency. Covered Employees & Enforcement Agency: Employers with 15+ employees, including all private employers; federal, state, and local governments; educational institutions; private and public employment agencies; labor organizations; and joint labor management committees that control apprenticeship and training programs. Enforced by EEOC

Equal Employment Opportunity Laws & Exec. Orders: Regulation: Executive Order 11246 (EO 11246)

Provisions: Similar to Title VII; prohibits employment discrimination on the basis of race, color, religion, sex, national origin, sexual orientation, and gender identity by federal contractors; requires affirmative action plans for federal contractors. Covered Employees & Enforcement Agency: Federal contractors with contracts greater than $10k must not discriminate; federal contractors with 50 or more employees and contracts for over $50k must have affirmative action plans. Enforced by OFCCP

Equal Employment Opportunity Laws & Exec. Orders: Regulation: The Pregnancy Discrimination Act of 1978 (PDA)

Provisions: Specifies that women who are pregnant or who are affected by pregnancy-related conditions are to be treated the same as other applicants or employees with similar limitations or disabilities. Covered Employees & Enforcement Agency: Same as Title VII of the Civil Rights Act of 1964. Enforced by EEOC.

Equal Employment Opportunity Laws & Exec. Orders: Regulation: The Equal Pay Act of 1963 (EPA)

Provisions: Prohibits discrimination in pay on the basis of gender for individuals performing jobs with the same skill, effort, responsibility, and working conditions unless a factor other than gender is being used to determine the pay difference. Covered Employees & Enforcement Agency: All employees, including the federal government. Enforced by EEOC. 1963 Congress made it clear to employers such pay differences were no longer acceptable when it passed the Equal Pay Act (EPA) as an amendment to the Fair Labor Standards Act (FLSA).

Protected Classifications (one or more demographic characteristics that a company generally cannot use to make employment decisions)

Race Sex (including gender identity and sexual orientation) Religion Color National Origin Age (Being 40+) Disability Veteran Status Pregnancy Genetic Information The primary objective of anti-discrimination legislation and executive orders is to ensure that individuals are given equal opportunity in the workplace. An employer cannot refuse to hire Asians (race) or Muslims (religion) because they are Asians or Muslims.

Reasonable Cause (religious Discrimination)

Reasonable cause exists when the EEOC believes that there is enough evidence that discrimination has occurred to make a case. Variety of Forms: 1. An employer might refuse to hire an applicant because of her/his particular religion, in which case disparate treatment occurs. 2. An employer might have a policy that requires Saturday work. Such a policy could have disparate impact on an employee whose religion does not permit working on Saturdays, such as 7th day Adventists. The employer would either have to accommodate an employee by permitting him/her to work on a day other than Saturday or prove adjusting the schedule would impose an undue hardship on the company.

Age Discrimination in Employment Act of 1967 (ADEA)

Resulted from employment practices which employers preferred younger over older workers. Even terminated older workers to avoid paying retirement benefits. Applies to employers with 20+ employees (including state, local governments, employment agencies, labor organizations, and federal government). Applies to apprenticeship programs, job notices and advertisements, pre-employment inquiries, and benefits, as well as most other employment practices. Years of service cannot be used by employers as a proxy for age when making employment decisions. Age discrimination can occur even if both individuals are in the protected class. Example: employee age 50 denied promotion. Promotion is someone 42. Both are over 40 but discrimination may have occurred. Older employee would use the four-step McDonnell Douglass test to make a prima facie case of disparate treatment. The company would have to defend its actions by establishing a non-discriminatory reason for the decision. Courts tend to uphold early retirement incentives and waivers offered by employers so long as the employees were not coerced into signing the agreements, the agreements were presented in a way the employees could understand and the employees were given enough time to make a decision. Courts have also supported the use of BFOQs based on age when a company can demonstrate age affects performance in a job and could create a risk to public safety or adversely affect company efficiency. The law includes a provision for compulsory retirement of high-ranking executives who are guaranteed by their employer a certain level of retirement income. ADEA amended in 1990 by the Older Workers Benefit Protection Act (OWBPA). It prohibits employers from denying benefits to older workers, does allow employers in limited circumstances to use age as the basis for reducing benefits, so long as the cost of those benefits is still equal to the cost of providing the benefits for younger workers.

Guidelines for Reducing Harassment in the Workplace 2

Steps Managers Should Follow: 1. Recognize that you are responsible for creating a harassment-free environment for your employees. 2. Make sure you understand what constitutes harassment and what your role is when a problem occurs. 3. Ensure that employees receive training on and understand the anti-harassment policy and know their role in following the policy. 4. Report any incidents of harassment immediately. 5. Make sure that incidents are investigated and individuals making the reports are not further harassed. 6. Participate in any follow-up actions requested. 7. Always maintain confidentiality about situations that occur.

Equal Work

State of Massachusetts: Prohibits from asking job applicants about their previous salaries and applies to both application forms and interviews. The law also broadens the definition of equal work and prohibits employees from discussing salary among themselves. Applicants can still volunteer previous salary information and employers can still negotiate their salary with potential hires. Other cities and states, such as NYC & Oregon, have begun to pass laws that prohibit asking applicants about previous salaries as well.

Guidelines for Reducing Harassment in the Workplace

Steps Co. Should Take: 1. Develop & Regularly communicate anti-harassment policy to all employees, providing examples of the behaviors that are considered harassment. 2. Provide training to managers, making sure that they understand the policy and know that they are responsible for its enforcement. 3. Establish a process for reporting incidents to someone other than the employee's supervisor. ***VERY IMPORTANT STEP*** This step is especially important in case the harasser is the supervisor or in case the supervisor knows about but has ignored the harassment. A member of the HR department or the affirmative action officer can serve in this role. In a smaller firm without an HR department or Affirmative Action Officer, employees may be directed to speak with a designated manager as long as that person is not the direct supervisor of the employee. In the event the designated manager is the supervisor of the employee with the concern, the policy should direct the employee to an alternate manager. 4. Investigate all reports of harassment immediately. 5. Treat individuals reporting harassment with respect. 6. Take prompt action against harassers, ensuring that disciplinary action is appropriate to the nature of the offense. 7. Follow-up with the victim of harassment to ensure that the behaviors have stopped and no retaliation is occurring.

Equal Employment Opportunity Commission (EEOC)

The federal agency responsible for enforcing compliance with anti-discrimination laws such as the Civil Rights Act of 1964 (CRA 64), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).

What can happen if a federal contractor does not do all of the requirements?

The federal government can withhold payment to contractors that fail to comply with the EO 11246. Affirmative action requirement of the EO 11246 is very important!

Essential Functions

The job tasks, duties, and responsibilities that must be done by a person in a job.

3. Develop and implement an action plan

The last step in affirmative action program is to develop and implement an action plan to accomplish the goals established in step 2 to eliminate under-utilization in the company's WF. Co. may use a number of tactics to provide greater opportunities to under-utilized groups. Companies can modify where they advertise open positions to target certain demographic groups. Also, they can train current employees to increase the potential for promotions into job categories that are under-utilized.

2. Identify goals and timetables.

The next step is to establish goals and timetables to address under-utilization. It's important to understand goals are not the same as quotas. Quotas stipulate hiring a certain number of employees from a protected classification and are often met by hiring unqualified applicants or applicants who are less qualified than others, just to make the numbers. The OFCCP explicitly bans quotas.

Sex, including gender identity and sexual orientation, are considered protected classes under Federal EEO laws. True or False

True

1. Conduct a utilization and availability analysis

This analysis is a profile of a company's current workforce relative to the pool of qualified workers in the relevant labor market. Companies must first identify the demographic profile of current employees in certain job groupings (e.g., managerial, secretarial, technical). Second, companies must identify the percentage of individuals in the relevant labor market - the appropriate comparison group of skilled employees - who are in each job grouping. Third, companies must compare these two demographic profiles. For ex: the company will have to determine what percentage of professional sales personnel already in the company are female, and what percentage of individuals in the WF may work in professional sales are female. If a co percentage of of that demographic category available in the labor market, that protected group is said to be underutilized for that job.

Gender Discrimination

Title VII makes it unlawful for an employer to discriminate on the basis of gender in any employment situation or opportunity. For example: an employer cannot refuse to hire a woman for fear that she will get married, have children, and decide to quit her job. Additionally the EEOC interprets Title VII as forbidding discrimination on the basis of gender identity or sexual orientation. Denying a promotion to someone who is gay, firing an employee who plans a gender transition, or denying an employee access to common restroom for his/her gender identity are all examples of unlawful gender discrimination in employment.

An employer doing business in the U.S. who requires that all employees speak English at all times, including during breaks, may be committing national origin discrimination. True or False

True

An example of a mixed motive case would be when an employer refuses to hire an applicant who is over 40 years old and tells him that he is "over-qualified" for the job, even though the real reason for denying employment is his age. True or False

True

It is considered a case of adverse impact when a non-job related test is used to screen applicants and it creates an unfair and disproportionate outcome for a protected class. True or False

True

Undue Hardship

Undue hardship can take the form of diminished job efficiency, higher-than-usual administrative costs, impaired safety in the workplace, need for coworkers to perform hazardous or burdensome portions of the employee's work or violation of a law or regulation. It is a situation that exists when accommodating an employee would put the employer at a disadvantage financially or otherwise would make it difficult for the employer to remain in business and competitive.

Bona Fide Occupational Qualifications (BFOQ):

a BFOQ exists when a protected classification can legally be used to make an employment decision. Ex: a modeling agency has a client that designs clothes exclusively for women. The agency decides to hire only women to model the clothes. The employer in this example would claim that gender is a BFOQ. BFOQ the agency can claim is a business necessity meaning that the employment practice has some relationship to legitimate business goals and that it is essential to the company's survival. Landmark 1971 case: Diaz V. Pan American World Airways Celio Diaz wanted to be a domestic flight attendant or Domestic flight cabin attendant for Pan American World Airways (Pan Am). He did not get the job because of his gender. Diaz filed charges of gender discrimination and Pan Am argued that females are more nurturing, give more courteous personal service, and generally make flights more pleasurable for passengers than can males. In the late 1960s and early 1970s most air travel was done by businessmen. The 5th Circuit Court of Appeals noted that gender can be a selection criterion only if it affects business operations and business convenience is not a reason for using gender as a BFOQ. If a company uses gender as a BFOQ, they need to show all or substantially all members of that sex cannot reasonably perform some aspect of that job, and that the aspect is a business necessity. Pan Am already had 283 MALE stewards/Flight attendants on their foreign flights at the time of the case, providing further evidence that gender was not an appropriate BFOQ. Employers can NEVER USE RACE OR SKIN COLOR AS A BFOQ FOR ANY REASON!!!

Disparate Impact

disparate impact is discrimination that occurs when an employment practice results in members of a protected class being treated less favorably than members of non-protected class, even though the discrimination was not intentional. More subtle and usually unintentional form of discrimination. Ex: job requirement at a home improvement store might state that all employees must be six feet tall to perform a job that requires regularly reaching up to obtain items from high shelves. This job requirement might not be intended to discriminate against anyone. It may lead to discrimination against several protected classifications such as Females and Other Members of Minority Groups. Women's average height in the US is 5'4" & Men 5'9". The height requirement would yield an unequal outcome for women because, on average, fewer women than men would be tall enough to be hired. Ex: Duke Power Company in 1971 was identified by the court of Disparate Impact of Discrimination. Black employees challenged the employer's selection requirements for hiring and transferring to other jobs at the plant. Co wanted applicants to have HS diploma and to take 2 professionally prepared aptitude tests. Co. history of racial discrimination: restricting black employees to the lowest-level jobs within one department and paying them less than the lowest-paying job in the other four operating departments. Relevance to the criteria was suspect because there were employees doing just fine in the jobs in question who did not have HS Diplomas and who had not taken the tests. Also, blacks in the area were less likely than whites to have a HS Diploma and would be less likely to pass the tests because of their lack of education. The employer could not show that having a HS Diploma and passing the tests were necessary to be able to preform the jobs. Thus, discrimination occurred, even though that was not the company's intent. Can the employer show that there is a valid, job-related reason for using the selection criterion that discriminates? If so then no discrimination. If not then discrimination.

Affirmative Defense

factual information presented by the defendant that leads to a claim by a plaintiff being defeated even if the claim is true