Chapter 16: Employment Discrimination

Quid Pro Quo

Latin for "what this for that," or "something for something;" the giving of something valuable for something valuable, such as consideration in a contract. Also refers to sexual discrimination, when sexual favors are exchanged for employment favors.

Underutilization Analysis

a statistical review of workforce categories to look for evidence of underrepresentation of women and/or minorities; usually performed as part of affirmative action requirements. (gov. contractors must do this.)

Undue Hardship

an accommodation to employees, based on an effort to satisfy religious beliefs, that would either alter the nature of the enterprise or affect its viability due to the costs imposed on the employer or other employees.

Professionally Developed Ability Tests

employers can use tests to determine if job applicants possess the necessary skills and attributes to perform the job. (As long as the test is not designed, intended, or used to discriminate because of race, color, religion, etc.)

Voluntary Retirement Incentives

employers may not force "involuntary retirement" under the Older Workers Benefit Protection Act. If early retirement incentive plan (ERIP) benefits are so generous that an employee chooses to retire, the employee cannot claim to have been forced to retire.

Seniority or Merit Systems

employers often use differential treatment based on seniority or merit.

Bona Fide Occupational Qualification (BFOQ)

employment in particular jobs may not be limited to persons of a particular sex or religion, unless the employer can show that sex or religion is an actual qualification for performing the job. Not permitted on the basis of race. (females should only be hired in a strip club/topless bar)

Discrimination

illegal treatment of a person or group (intentional or unintentional) based on race, color, national origin, religion, sex, disability, or age. This includes the failure to remedy the effects of past discrimination.

Disparate Impact

in employment discrimination law, when an apparently neutral rule regarding hiring or treatment of employees works to discriminate against a protected class of employees. (way fewer cases than Disparate Treatment; these are rare and more costly)

Bona Fide Seniority Program

in employment, a system that recognizes length of service in deciding promotions, layoffs, and other job actions; protection of workers based on length of service is protected by Title VII. (workers with most seniority have the most protection. Last hired-First fired: relates to minorities cause often they have less exp. than whites.)

Prima Facie Case

in federal employment discrimination law, the requirement that a plaintiff show they are a member of a protected class, met relevant job qualifications, suffered some adverse job action, and was treated differently with respect to the same issue by an employer. (McDonnell-Douglas Test: 4 steps)

Affirmative Action

taking constructive steps to remedy discriminatory employment practices affecting racial minorities and women. (especially when a particular class is underrepresented in the employer's workforce.)

National Origin

the country a person or person's ancestors are from.

Equal Pay Act of 1963

the first federal law to address employment discrimination. Made it illegal to pay men and women employees different wages when their job require equal skill, effort, responsibility, and the same working conditions.

Titile VII

the major section of the Civil Rights Act of 1964 that provides the primary basis for suits for employment discrimination based on race, sex, religion, color, or national origin.

Title VII of the 1964 Civil Rights Act

the most important anti discrimination employment law is Title VII of the Civil Rights Act of 1964. Amendments to Title VII are the Equal Employment Opportunity Act of 1972, Pregnancy Discrimination Act in 1978, and by the Civil Rights Act of 1991.

Reasonable Accommodation

the requirement that employers take steps that are not very costly to make employment possible for persons with disabilities. (also required to provide for employee's religious practices.)

Merit System

the right of an employer to have a system to reward employees based on performance; often used as an affirmative defense in a Title VII discrimination cases.

Color

the shade of one's skin

Remedies in Discrimination Cases*

there are several specific remedies...

Harassment

unwelcome conduct based on race, color, religion, sex (including pregnancy), national origin, age (40yr or older), disability or genetic information in violation of employment discrimination law.

Retaliation

when a worker suffers a adverse employment decision because the worker exercised a right under an employment discrimination statute.

Constructive Discharge

when an employee quits employment due to pervasive abuse or discriminatory treatment in violation of Title VII.

Differential Standard

when an employer sets rules to make it more difficult for a person who is a member of a protected class to meet job requirements than for similarly situated employees.

Reverse Discrimination

when discrimination is employed against majority groups so as to favor certain minority groups, often in affirmative action programs.

Religion

any sincere and meaningful belief a person possesses.

Pretext

an attack made by a plaintiff against a defense offered by an employer to a charge of discrimination, holding that the rationale given is a false excuse to cover discriminatory treatment.

Front Pay

compensation for future economic losses arising from employment discrimination that cannot be remedied by traditional relief, such as hiring, promotion, or reinstatement.

Back Pay

compensation for past economic losses (lost wages and fringe benefits) caused by an employer's discriminatory employment practices, such as limiting promotion opportunities for older workers.

Hostile Environment

creating or allowing to exist a climate at work that is abusive to a person based on their protected class status.

Business Necessity

justification for an otherwise prohibited discriminatory employment practice based on employer's proof that 1) the otherwise prohibited employment practice is essential for safety and efficiency of the business, and 2) no reasonable alternative with a lesser impact exists. (having strength to move heavy stuff)

Protected Classes

under Title VII of the Civil Rights Act of 1964, those groups the law seeks to protect, including groups based on race, sex, national origin, religion, and color.

Sex

under federal employment discrimination law, male and female; under some state laws, sexual orientations may be recognized categories. (title ViI doesn't prohibit discrimination based on sexual preference or identity; just M/F)

Executive Orders

under powers granted by the Constitution, or by Congress in legislation, an order by the president to establish or enforce a legal requirement.

Disability

under the Americans with Disabilities Act, a physical or mental condition that affects a major life activity that limits the ability of a person to perform a particular job function.

Traditionally, discrimination cases have been broken into 2 major groups

Disparate Treatment and Disparate Impact

Age

all persons over age 40 are covered; the Age Discrimination in Employment Act (ADEA) prohibits discrimination in employment against persons on the basis of age.

Disability Discrimination

Rehabilitation Act of 1973 Americans with Disability Act (ADA) of 1990

Race

also called racial status: black, white, American Indian, or Alaska Native, Native Hawaiian, or Other Pacific Islander, Asian, and Hispanic or Latino.

Genetic Information

a basis for employment discrimination based on exploitation of genetic information about a current or potential employee that affects employment decisions.

Right-to-Sue Letter

a document issued by a federal or state employment discrimination agency, after an investigation of a complaint, stating that the plaintiff has raised issues that merit review by a court.

Workforce Analysis

a statistical breakdown of the composition of employees in an organization, by job category, by EEOC protected class status. (government contractors must do this)

Disparate Treatment

differential treatment of employees or applicants on the basis of their race, color, religion, sex, national origin, or age; for example, when applicants of a particular race are required to pass tests not required of other applicants. (employee bus prove that the employer intentionally discriminated)

Sexual Harassment

discrimination in employment in violation of Title VII of the 1964 Civil Rights Act that may be evidenced by sexual advances, requests for sexual favors, and other conduct of a sexual nature. (falls into 2 major categories: quid pro quo and hostile environment.)

Reasonable Accommodation

employers must make these for persons with disabilities and are expected to incur expenses in making a position or workstation available to qualified disabled people.

Compensatory Damages

for emotional distress, medical expenses, job-hunting costs, and loss of reputation. (not available in ADEA cases.)

Punitive Damages

may be granted to punish the employer for wrongdoing because the employer acted with malice or in reckless disregard for protected rights. (not available in ADEA) These damages are capped by federal law to b/t $50k-$300k, depending on size of employers.

Attorney's Fees

may be recovered, as well as costs such as filing fees, expert witness fees, and transcripts. Title VII plaintiffs who win usually get this; defendants who win rarely do. (no ADEA)

Steps in the Process of Discrimination Complaint to EEOC

members of protected class believes discrimination in employment has occurred-->Files complaint with EEOC federal or state office-->EEOC investigates complaint for merit, and may help negotiate a resolution-------------------->Issues right-to-sue letter to complaint -->Refuses to issue letter to sue finding no reasonable causes -->EEOC sues employer for discriminatory practices.