Chapter 30: Employment Discrimination

1) An employer with 20 or more workers may not fire, refuse to hire, fail to promote, or otherwise reduce a person's employment opportunities because he is 40 or older 2) Employers can not require workers to retire at a certain age (there are exceptions to this rule: airline pilots, police officers, top-level corporate executives)

Age Discrimination in Employment Act (ADEA)

The retaliatory action would not have occurred if it were not for the defendant's discriminatory intent

But-for Causation

1) Provided that all people born in the United States (except Native Americans) were citizens of the United States and had the same rights as white citizens 2) Has been interpreted to prohibit racial discrimination in both private and public employment 3) Does not apply to the federal government

Civil Rights Act of 1866

1) A worker may not be paid at a lesser rate than employees of the opposite sex for equal work 2) "Equal work" means tasks that require equal skill, effort and responsibility under similar working conditions

Equal Pay Act of 1963

Prohibits restrictions on the right to vote because of race or color

Fifteenth Amendment

Prohibits the federal government from depriving individuals of life, liberty, or property without the due process of law

Fifth Amendment

Prohibits state government from violating an individual's right to due process and equal protection

Fourteenth Amendment

Prohibits slavery

Thirteenth Amendment

The Supreme Court has ruled that same-sex harassment is also a violation of Title VII

Title VII of the Civil Rights Act of 1964: Same-Sex Harassment

A defendant is not liable if he shows that the person he favored was the most qualified

Title VII of the Civil Rights Act of 1964: Defenses to Charges of Discrimination: Merit

1) Once it is established that a worker is disabled, employers may not discriminate on the basis of disability as long as the worker can, with REASONABLE ACCOMMODATION, perform the ESSENTIAL FUNCTIONS OF THE JOB. An accommodation is not reasonable if it would create UNDUE HARDSHIP on the employer 2) Reasonable Accommodation: The ADA Amendment Act of 2008 expanded the definition of disability 3) Essential Functions of the Job: What are truly the essential functions of the job is often debated in court 4) Undue Hardship: Many courts hold that employers may use cost-benefit analysis

Discrimination on the Basis of Disability: Accommodating the Disabled Worker

1) Prohibits employers with 15 or more workers from discriminating on the basis of disability 2) Disability: A) A disabled person is someone with a physical or mental impairment that substantially limits a major life activity or the operation of a major bodily function or someone who is regarded as having such an impairment B) The ADA applies to recovered drug addicts 3) Alcoholics are covered by the ADA if they can meet the definition of disability, but employers can terminate them if their drinking adversely affects job performance 4) Even if the disability can be successfully treated, the employee is still considered disabled; EX: diabetes; EXCEPTION: Person with normal vision when corrected with contact lenses or glasses is not disabled for purposes of the ADA

Discrimination on the Basis of Disability: Americans With Disabilities Act

1) Both disparate treatment and disparate impact claims are valid under the ADA 2) To win a disparate impact case, the plaintiff must show that a policy that looks neutral falls more harshly on a protected group and cannot be justified by business necessity

Discrimination on the Basis of Disability: Disparate Treatment and Disparate Impact

An employee is entitled to recovery under the ADA if she is subjected to a hostile work environment because of her disability

Discrimination on the Basis of Disability: Hostile Work Environment

An employer generally may not require a medical exam or ask about disabilities, except the interviewer may ask: 1) Whether an applicant can perform the work (provided that the same question is asked of all applicants) 2) For the applicant to demonstrate how he would perform the job, and 3) (in the event that a disability is obvious) what accommodation the applicant would need

Discrimination on the Basis of Disability: Medical Exams: Applicants

The company may require a medical test and make it a condition of employment, but the test must be: 1) Required of all employees, whether they are disabled or not, and 2) Treated as a confidential medical record

Discrimination on the Basis of Disability: Medical Exams: Entering Employees

An employer may require medical exams or discuss any suspected disability, but only to determine if a worker is still able to perform the existing functions of her job

Discrimination on the Basis of Disability: Medical Exams: Existing Employees

Under EEOC rules, physical and mental disabilities are to be treated the same

Discrimination on the Basis of Disability: Mental Disabilities

1) According to the EEOC, just being overweight is not a disability unless it has some underlying physiological cause, such as thyroid disorder 2) However, being morbidly obese (defined as having double the normal body weight) is a disability, no matter what the cause

Discrimination on the Basis of Disability: Obesity

An employer may not discriminate against someone because of his relationship with a disabled person

Discrimination on the Basis of Disability: Relationship with a Disabled Person

1) Prohibits discrimination on the basis of disability by the executive branch of the federal government, federal contractors, and entities that receive federal funds 2) It also requires these organizations to develop affirmative action plans for the hiring, placement and promotion of the disabled

Discrimination on the Basis of Disability: The Rehabilitation Act of 1973

People bringing a Constitutional claim must file suit on their own

Enforcement: Constitutional Claims

1) The EEOC is the federal agency responsible for enforcing Title VII, The Equal Pay Act, the Pregnancy Discrimination Act, ADEA, ADA, and GINA 2) Before a plaintiff can bring suit under any of these statutes, she must first file a complaint with the EEOC 3) There are statutory limitations on damages in many instances 4) Employers are increasingly requiring arbitration

Enforcement: Other Statutory Claims

For plaintiffs alleging racial discrimination, the Civil Rights Act of 1866 offers substantial advantages over Title VII: 1) A four-year statute of limitations (versus less than a year under Title VII) 2) Unlimited compensatory and punitive damages 3) Applicability to all employers, not just those with 15 or more employees Not enforced by the EEOC, so plaintiff must negotiate or sue on their own

Enforcement: The Civil Rights Act of 1866

Enforced by the EEOC (for claims against the executive branch of the federal government), the Department of Labor (for claims against federal contractors), and the Department of Justice (for claims against entities that receive federal funds)

Enforcement: The Rehabilitation Act of 1973

If you want to be a firefighter, you have to pass the physical fitness test, it is going to disproportion women, who is gonna pass on lower rate than men

Example Disparate Impact

1) Under the Genetic Information Nondiscrimination Act (GINA), employers with 15 or more workers may not require genetic testing, or use information about genetic makeup or family medical history as a factor in hiring, firing, or promoting employees 2) Nor may health insurers use such information to decide coverage or premiums

Genetic Information Nondiscrimination Act

The bottom line is to avoid questions that relate to protected categories

Hiring Practices: Interviews

1) Employers may learn things of a protected nature when viewing applicant or employee social media 2) Some employers will separate the roles of hiring and "cyber-vetting"

Hiring Practices: Social Media

1) An employer may not fire, refuse to hire, or fail to promote a woman because she is pregnant 2) An employer also violates this statute if the work environment is so hostile toward a pregnant woman that it affects her ability to do her job 3) An employer must treat pregnancy and childbirth as any other temporary disability 4) Also protects a woman's right to terminate a pregnancy - a employer can not fire a woman for having an abortion

Pregnancy Discrimination Act

1) From the Latin, meaning "from its first appearance," something that appears to be true upon a first look 2) In this first step, the plaintiff is not required to prove discrimination, she need only create a presumption that discrimination occurred

Prima facie

1) Plaintiff must offer prima facie evidence that the employer discriminated because of his disability 2) The employer must then offer a legitimate, nondiscriminatory reason for its action 3) To win, the plaintiff must now prove that the employer intentionally discriminated; She may do so by either showing: A) The reasons offered were a pretext, or B) A discriminatory intent was more likely than not

Steps in a disparate treatment case

1) Current drug users 2) Sexual disorders 3) Pyromania 4) Exhibitionism 5) Compulsive gambling

The ADA does not apply to:

1) The plaintiff must present a prima facie case: The plaintiff is not required to prove discrimination; he need only show a disparate impact - that the employment practice in question excludes a disproportionate number of people in a protected group, 2) The defendant must offer some evidence that the employment practice was a job-related business necessity 3) To win, the Plaintiff must now prove either that the employer's reason is a pretext or that other, less discriminatory rules would achieve the same results

The requires steps in a disparate impact case are:

1) Under Title VII of the Civil Rights Act of 1964, it is illegal for employers with 15 or MORE EMPLOYEES to discriminate on the basis of race, color, religion, sex or national origin 2) This protection applies to every aspect of the employment process, from job ads to post-employment references, and includes hiring, firing, promoting, placement, wages, benefits and working conditions of anyone who is in one or more of the so-called protected categories (race, color, religion, sex, or national origin)

Title VII of the Civil Rights Act of 1964

1) Attractive men and women have advantages in life: voters, jurors, teachers, college admissions staffs, and bosses treat them better 2) Studies have shown that investors are willing to pay more the stock of companies with attractive CEOs 3) Unattractiveness is not a protected category under Title VII

Title VII of the Civil Rights Act of 1964: Attractiveness

1) EEOC regulations prohibit companies from using criminal history information in a way that has an adverse impact on employees in a protected category if that background information is irrelevant in determining whether the employee is appropriate for the job 2) Employers may not consider arrest records, because that is not evidence of wrongdoing 3) The EEOC also discourages the use of credit checks because minorities tend to have worse credit ratings than whites

Title VII of the Civil Rights Act of 1964: Background and Credit Checks

1) Family responsibility discrimination is a violation of Title VII if it involves men and women being treated differently 2) The EEOC has issued guidelines indicating that stereotypes are not a legitimate basis for personnel decisions and may violate Title VII 3) Some state and local laws prohibit either parenthood discrimination or family responsibility discrimination

Title VII of the Civil Rights Act of 1964: Family Responsibility Discrimination

1) Traditionally, courts took the view that sex under Title VII applied only to how people were born, not what they chose to become 2) Some courts have found it a violation of Title VII for an employer to take adverse employment action because of the gender change of an employee 3) The EEOC ruled that discriminating against someone for being transgender is a violation of Title VII and about one-third of the states and hundreds of cities prohibit gender identity and expression discrimination 4) The federal government prohibits discrimination on gender identity among its employees and in companies that work for it

Title VII of the Civil Rights Act of 1964: Gender Identity and Expression

1) Employers violate Title VII if they permit a work environment that is so hostile toward people in a protected category that it affects their ability to work 2) This rule applies to hostility based on race, color, religion, sex, national origin, pregnancy, age, or disability

Title VII of the Civil Rights Act of 1964: Hostile Work Environment

1) Under Title VII, it is illegal for employers to discriminate against non-citizens because "national origin" is a protected category 2) Employers are permitted to ask if a person is authorized to work in the US

Title VII of the Civil Rights Act of 1964: Immigration

1) The Supreme Court has ruled that gender must be irrelevant to employment decisions 2) The Supreme Court has also ruled that Title VII forbids sexual stereotyping

Title VII of the Civil Rights Act of 1964: Sex

Involves unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature which are so severe and pervasive that they interfere with an employee's ability to work

Title VII of the Civil Rights Act of 1964: Sexual Harassment

1) Neither Title VII nor any other federal statute protects against discrimination based on sexual orientation 2) However, by Executive Order, the federal government does prohibit discrimination based on sexual orientation among its own employees and also among companies that work for it 3) Almost half of the states and hundreds of cities have statutes that prohibit discrimination based on sexual orientation 4) The Supreme Court has ruled that it is unconstitutional to withhold federal benefits from same-sex married couples, but this inconsistency in federal law means that, in many places, a gay person could be fired for claiming these benefits

Title VII of the Civil Rights Act of 1964: Sexual Orientation

1) The goal of affirmative action programs is to remedy the effects of past discrimination 2) Affirmative action is not required by Title VII, nor is it prohibited 3) Three different sources of affirmative action programs A) Litigation B) Voluntary action C) Government contracts

Title VII of the Civil Rights Act of 1964: Defenses to Charges of Discrimination: Affirmative Action

1) An employer is permitted to establish discriminatory job requirements if they are essential to the position in question 2) Only religion, sex or national origin can be a BFOQ - never race or color 3) Courts almost always reject BFOQ claims that are based on customer preference but the courts recognize three situations in which employers may consider customer preference: A) Safety B) Privacy C) Authenticity

Title VII of the Civil Rights Act of 1964: Defenses to Charges of Discrimination: Bona Fide Occupational Qualification (BFOQ)

A legitimate seniority system is legal, even if its perpetuates past discrimination

Title VII of the Civil Rights Act of 1964: Defenses to Charges of Discrimination: Seniority

1) Applies if the employer has a rule that, on its face, is not discriminatory, but in practice excludes too many people in a protected group 2) The plaintiff does not have to prove intentional discrimination

Title VII of the Civil Rights Act of 1964: Disparate Impact

1) To prove a disparate treatment case, the plaintiff must show that she was treated LESS favorably than others because of her sex, race, color, religion or national origin 2) The burden of proof is on the plaintiff: A) Must prove that he employer intentionally discriminated B) Discriminatory motive can be inferred from differences in treatment

Title VII of the Civil Rights Act of 1964: Disparate Treatment

The Supreme Court has held that: 1) The company is liable if it knew or should have known about the conduct and failed to stop it 2) Even if the company was unaware of the behavior, it is nonetheless liable if the victimized employee suffered a "tangible employment action" such as firing, demotion or reassignment 3) If the company was unaware of the behavior, and the victimized employee did not suffer a tangible employment action, the company is still liable unless it can prove that: A) It used reasonable care to prevent and correct harassing behavior, and B) The employee unreasonably failed to take advantage of the complaint procedure or other preventive opportunities provided by the company

Title VII of the Civil Rights Act of 1964: Employer Liability for Harassment

There are four types of illegal activity under this statute: 1) Disparate treatment 2) Disparate impact 3) Hostile environment 4) Retaliation All of these activities are illegal if used against anyone in a protected category

Title VII of the Civil Rights Act of 1964: Prohibited activities

1) Employers cannot discriminate against a worker because of his religious beliefs 2) In addition, employers must make reasonable accommodation for a worker's religious practices unless the request would cause undue hardship for the business

Title VII of the Civil Rights Act of 1964: Religion

1) Title VII also prohibits employers from retaliating against workers who oppose discrimination, bring a claim under the statute, or take part in an investigation or hearing 2) The standard of proof is higher for retaliation claims than for the underlying discrimination issue 3) In basic discrimination cases, a plaintiff can win by showing that discrimination was a motivating factor, although other factors were also involved 4) In a retaliation case, the plaintiff must demonstrate that, but for the defendant's desire to retaliate, he would never have taken the harmful action (this standard is called but-for causation)

Title VII of the Civil Rights Act of 1964: Retaliation

1) Plaintiff presents evidence that: A) She belongs to a protected category under Title VII B) She suffered adverse employment action, and C) This action occurred under conditions giving rise to an inference of discrimination If the plaintiff can show these facts, she has made a prima facie case

Title VII of the Civil Rights Act of 1964: There are 3 required steps in a disparate treatment case

2) The defendant must present evidence that its decision was based on legitimate, non- discriminatory reasons

Title VII of the Civil Rights Act of 1964: There are 3 required steps in a disparate treatment case

3) To win, the plaintiff must now prove that the employer intentionally discriminated She may do so by showing either that: A) The reasons offered were simply a pretext, or B) A discriminatory intent is more likely than not

Title VII of the Civil Rights Act of 1964: There are 3 required steps in a disparate treatment case

An employee has a valid claim of sexual harassment if sexual talk and activity are so pervasive that they interfere with the employee's ability to work

Two categories of sexual harassment: Hostile Work Environment

1) From a Latin phrase that means "one thing in return for another" 2) Quid pro quo harassment occurs if any aspect of a job is made contingent upon sexual activity

Two categories of sexual harassment: Quid Pro Quo

The courts have interpreted the provisions of the Fifth and Fourteenth Amendments to prohibit employment discrimination by federal, state and local governments

United States Constitution