Chapter 13: Employment Law II: Discrimination

Pregnancy Discrimination Act

Discrimination with regard to pregnancy is treated as a form of sex discrimination.

English Only Rule

EEOC guidelines prohibit employers from imposing a blanket ban on employees speaking their primary language in the workplace, but an English-only rule at certain times is permissible if justified by business necessity and if adequately explained to the employees.

EEOC Sex Based Discrimination Charges

Have stayed steady over the last decade.

Glass Ceiling

Holds women back from roles of power and career advancement. However, women have the same job satisfaction as men and place more importance on other factors such as relationships with coworkers. This may explain why the glass ceiling doesn't necessarily create job dissatisfaction.

Four-Fifths Rule

If the selection rate for hirings, promotions, passing tests for any protected class is less than 80 percent of the selection rate for the group with the highest selection rate.

Protected activity

Include opposing an employment practice that is reasonably believed to violate Title VII, or participating in any manner in a charge made under Title VII, including offering testimony on behalf of a coworker.

Americans With Disabilities Act

Passed by Congress in 1991, this act banned discrimination against the disabled in employment and mandated easy access to all public and commerical buildings.

Civil Rights Act of 1866

Passed by Congress on 9th April 1866 over the veto of President Andrew Johnson. The act declared that all persons born in the United States were now citizens, without regard to race, color, or previous condition.

United Steelworkers of America v. Weber

Plan was set aside half the training positions for blacks until percent of black craft workers equaled the percent age of blacks in the local labor market. US Supreme Court ruled against Weber since (1) the affirmative action was part of a plan, (2) the plan was designed for affirmative action, (3) the plan was temporary, (4) plan didn't harm the rights of white employees (didn't require firing white nor did it bar advancement of white employees)

Plaintiff's prima facie case

Presumed true and confirmed by providing each of the following ingredients: (1) Plaintiff belongs to a protected class (2) Plaintiff applied for job while defendant was seeking applicants. (3) plaintiff was qualified (4) plaintiff denied the job (5) Position remained open, and the employer continued to seek applicants.

Genetic Information Nondiscrimination Act (GINA)

Prohibits employers from discriminating because of genetic information.

Employment Non-Discrimination Act (ENDA)

Proposed legislation that would prohibit employers from discriminating on the bases of an employee's actual or perceived sexual orientation.

Affirmative Action Efforts

1 Court may order it 2 Employer may voluntarily adopt it 3 Some statutes require it 4 May be needed to do business with government agencies

1963 Equal Pay Act

Brought American women working full time wages up from 59 cents to 77 cents for every dollar earned by men.

Defendant's case

If plaintiff builds a successful prima facie case, the defendant must articulate some legitimate, nondiscriminatory reason for the employee's rejection.

Civil Rights Act of 1991

Increased the penalties of violating the civil rights act of 1964. Applies to sexual harassment, where the environment in the office is hostile and abusive. Extends Title VII''s protection to American employees working abroad for such employers.

Equal Pay Act

made it illegal for employers to pay female workers less than men for the same job

Fourteenth Amendment

required states to grant citizenship to "all persons born naturalized in the U.S." and promised "equal protection of the laws."

Steps in Litigation

(1) Complaint (2) Attempt for mediation (3) EEOC will investigate (4) If no cause for complaint is found, EEOC will issue a right-to-sue letter, and their job is done. (5) If grounds for the complaint are found, then conciliation or civil suit or a right to sue letter.

Employer Liability

(1) Done by coworker, plaintiff can argue that the employer was negligent. (2) Done by supervisor and employee suffered tangible employment action because of the harassment, the employer is liable. (3) Done by supervisor and no tangible employment action, employer can avoid liability by proving both element of the following affirmative defense.

Affirmative Defense by Employer

(1) The employer exercised reasonable care to prevent and correct the harassment promptly (anti-harassment training programs, harassment policy), AND (2) the employee unreasonably failed to take advantage of those opportunities.

Proof of Sexual Harassment

(1) harassment unwelcome (2) harassment because of sex (3) harassment resulted in a tangible employment action, or was sufficiently severe or pervasive as to unreasonably alter the conditions of employment and create a hostile, abusive working environment.

ADA Definition of a Disabled Person

-Has a physical or mental impairment that substantially limits one or more major life activities -Has a record of such an impairment -Is regarded as having such an impairment

Disparate Impact Analysis

-Plaintiff/employee must identify the specific employment practice or policy -Plaintiff must prove that the protected class is suffering -Defendant/employer must prove the policy is job related and consistent with business necessity -Plaintiff must prove that defendant refuses to adopt an available, alternative, less discriminatory business practice.

Equal Pay Exceptions

-Seniority system -Merit system -A system that measures earnings by quantity or quality of production -A differential based on any factor other than sex *Can avoid violation by raising pay of the disfavored sex, as lowering the pay of the favored sex.

Prohibited Factors / Protected Categories

An applicant's/employee's race, color, gender, among other characteristics.

Not sexual harassment

Complimenting a coworker's appearance, asking a coworker for a date, a woman looking at a man "up and down" as he walks by, and referring to women as "girls".

Religious Discrimination

Managers must reasonably accommodate employees' religious beliefs and practices. Religious faith must be sincere and meaningful.

Prima Facie Case of Retaliation

Requires: (1) participation in a protected activity known to the defendant, (2) an employment action disadvantaging the plaintiff, and (3) a causal connection between the protected activity and the adverse employment action.

Foreign Law Defense

The employer is not required to comply with Title VII if to do so would violate the host country's law.

Disparate Treatment

intentional discrimination that occurs when people are purposely not given the same hiring, promotion, or membership opportunities because of their race, color, sex, age, ethnic group, national origin, or religious beliefs

Brown v. Board of Education

court found that segregation was a violation of the Equal Protection clause; "separate but equal" has no place; reverse decision of Plessy v Feurgeson

Lawful Affirmative Action Considerations

-The plan addresses a compelling interest. -The plan is temporary. -The plan is narrowly tailored to minimize layoffs and other burdens.

Sexual Harassment

A form of discrimination that consists of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that (1) becomes a condition of employment, (2) becomes a basis for employment decisions, or (3) unreasonably interferes with work performance or creates a hostile working environment.

Tangible Employment Action

A significant change in employment status, such as a change brought about by 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.

Equal Employment Opportunity Commission (EEOC)

An independent federal agency which has the authority to issue regulations and guidelines as well as to receive, initiate, and investigate charges of discrimination against employers covered by federal anti-discrimination statutes.

Percent of Americans with Disability

Approximately 12% of working-age Americans have a disability.

Pietras v. Farmingville Fire Dept

Farmingville Fire imposed a PAT (physical agility test). Set a time limit to pass under 4 minutes. 95% men passed and 57% women passed. This breaks the four fifths rule and the court ruled that the PAT was not job related.

Civil Rights Act of 1964 Title VII

Forbids discrimination in employment on the basis of race, color, religion, sex, or national origin. Those exempt are private clubs and religious organizations on the basis of religion.

Trans World Airlines, Inc. v. Hardison

Hardison (plaintiff) celebrated his religion on Saturdays, and was unable to get that day off from his work in a parts warehouse. Supreme Court ruled that to require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.

Middle ground of sexual harassment

Male boss calling a female "honey", man looking at a woman "up and down" as she walks by, men in the office repeatedly discussing the appearance of female coworkers.

Same Sex Harassment

Must show that behavior was motivated by sexual desire, general hostility to one or other gender, or the victim's failure to conform to sexual stereotypes. Common sense and social context matter.

Plaintiff's response to defendant

Must show that the reason offered by the defendant was false and thus was merely a pretext to hide discrimination.

Age Discrimination in Employment Act (ADEA)

Must show: -40 years or older -Qualified for the position -Younger person received more favorable treatment -Offer direct evidence of discriminatory intent

Statutory Defenses/Exemptions

Seniority Employee Testing Bona fide occupational qualification

Disparate Impact

Sometimes called adverse impact. Claims arise from unintentional discrimination where an employment practice appearing to be neutral has the effect of adversely impacting a particular group under a protected category more than it impacts other groups.

Right-to-sue letter

Statutory notice by the EEOC to the charging party if the EEOC does not decide to file a lawsuit on behalf of the charging party.

City of Richmond v. J.A. Croson Co.

Struck down minority set-aside program because affirmative action plans were only constitutional if (1) the city or state could provide specific evidence of discrimination against a particular protected class in the past and (2) its remedy was narrowly tailored to the needs of the situation.

Johnson v. Transportation Agency

Supreme Court approved the extension of affirmative action to women.

Aman v. Cort Furniture Rental Corporation

Supreme Court ruled that racial slurs and code words cannot be excused as mere rudeness and may add up to discrimination so severe that it creates an abusive work environment.

Adarand Constructors v. Pena

Supreme Court struck down a federal highway program that extended bidding preferences to disadvantaged contractors. This program violated the plaintiff's right to equal protection under the law as guaranteed by the Fifth Amendment.

bona fide occupational qualification

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