Chapter 35: Employment Discrimination

The United States Supreme Court issued several important rulings in cases alleging sexual harassment by supervisors that established what is known as the:

"Ellerth/Faragher affirmative defense."

In some situations, employers have attempted to avoid liability for employment discrimination on the basis of

"after-acquired evidence" of an employee's misconduct.

The USERRA specifies that veterans can be terminated from their employment only

"for cause." • The employer is obligated to give employees a list of all the behaviors that would trigger a for-cause termination.

In replacing older workers with younger workers, the plaintiff need not prove that she or he was replaced by a person

"outside the protected class" (under the age of forty). The replacement worker need only be younger than the plaintiff.

If the EEOC decides not to investigate a claim, the EEOC will issue a:

"right to sue" that allows the employee to bring his or her own lawsuit against the employer.

Health conditions that have been considered disabilities under federal law include:

- Alcoholism - Acquired immune deficiency syndrome (AIDS) - Blindness - Cancer - Cerebral palsy - Diabetes - Heart disease - Human immunodeficiency virus (HIV) - Morbid obesity - Muscular dystrophy - Paraplegia

Under Title VII and other federal acts (gender), employers are prohibited from:

- Classifying or advertising jobs as male or female unless they can prove that the gender of the applicant is essential to the job - Having separate male and female seniority lists - Refusing to promote employees based on their gender

Hostile environment

- Hostile-environment harassment occurs when a pattern of sexually offensive conduct runs through the workplace and the employer has not taken steps to prevent or discourage it. - Such harassment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult, and this harassment is so severe or pervasive that it alters the conditions of employment.

Required accommodations may include:

- Installing ramps for a wheelchair - Establishing flexible working hours - Creating or modifying job assignments - Designing or improving training materials and procedures

To prove constructive discharge, an employee must:

- Present objective proof of intolerable working conditions - Show that the employer knew or had reason to know about these conditions yet failed to correct them within a reasonable time period - Show causation—that the employer's unlawful discrimination caused the working conditions to be intolerable

In the Title VII, employers cannot:

- Treat their employees more or less favorably based on their religious beliefs or practices -Require employees to participate in any religious activity or forbid them from participating in one

To establish a prima facie case of age discrimination, the plaintiff must show that she or he was:

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

The ADA defines a disability as including any of the following:

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

To prevail on a claim under the ADA, a plaintiff must show that they:

1. Have a disability 2. Is otherwise qualified for the employment in question 3. Was excluded from the employment solely because of the disability

Sexual harassment can take two forms:

1. Quid pro quo - Quid pro quo harassment occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits. 2. Hostile environment - Hostile-environment harassment occurs when a pattern of sexually offensive conduct runs through the workplace and the employer has not taken steps to prevent or discourage it. - Such harassment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult, and this harassment is so severe or pervasive that it alters the conditions of employment.

This defense has two elements:

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

In a Prima facie case, a plaintiff must show all of the following:

1. The plaintiff is a member of a protected class. 2. The plaintiff applied and was qualified for the job in question. 3. The plaintiff was rejected by the employer. 4. The employer continued to seek applicants for the position or filled the position with a person not in a protected class.

Business necessity

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

Association with Disabled Persons

A separate provision in the ADA prevents employers from taking adverse employment actions based on stereotypes or assumptions about individuals who associate with people who have disabilities.

Tangible employment action

A significant change in employment status or benefits, such as occurs when an employee is fired, refused a promotion, or reassigned to a lesser position.

Seniority system

A system in which those who have worked longest for an employer are first in line for promotions, salary increases, and other benefits, and are last to be laid off if the workforce must be reduced.

Constructive discharge

A termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave.

Plaintiff must pursue the claim through the EEOC before filing an action in court for a violation of the:

ADA

Case 35.1 Bauer v. Lynch

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Case 35.3 Franchina v. City of Providence 881 F.3d 32 (2018)

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Case 36.2 Young v. United Parcel Service Inc.

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Reasonable Accommodation and Undue Hardship

An employer must "reasonably accommodate" the religious practices and sincerely held religious beliefs of its employees, unless to do so would cause undue hardship to the employer's business.

Post-Pregnancy Discrimination:

An employer must continue to reasonably accommodate an employee's medical conditions related to pregnancy and childbirth, even after the pregnancy has ended.

Bona fide occupational qualification (BFOQ)

An identifiable characteristic reasonably necessary to the normal operation of a particular business. • Race, color, and national origin can never be BFOQs. • Courts have restricted the BFOQ defense to situations in which the employee's gender or religion is essential to the job.

Unintentional Discrimination:

Disparate-impact discrimination: Discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory impact.

Intentional Discrimination is:

Disparate-treatment discrimination: A form of employment discrimination that results when an employer intentionally discriminates against employees who are members of protected classes.

Undue Hardship

Employers who do not accommodate the needs of persons with disabilities must demonstrate that the accommodations would cause undue hardship in terms of being significantly difficult or expensive for the employer.

If a court finds that the wage differential is due to "any factor other than gender," such as seniority or merit system, then it does not violate the

Equal Pay Act.

Bostock v. Clayton County 140 S.Ct. 1731 (2020)

Extended Title VII protection to Sexual Orientation and Sexual Identification

Harassment by Supervisors

For an employer to be held liable for a supervisor's sexual harassment, the supervisor normally must have taken a tangible employment action against the employee.

Because of their inherently discriminatory nature, affirmative action programs may violate the equal protection clause of the

Fourteenth Amendment to the U.S. Constitution.

Affirmative action

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

Title VII of the Civil Rights Act:

Prohibits job discrimination against employees, applicants, and union members on the basis of Protected Class

Quid pro quo

Quid pro quo harassment occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, or other benefits.

Substance Abusers

The ADA protects persons with former drug addictions—those who have completed or are now participating in a supervised drug-rehabilitation program.

Sexual harassment:

The demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment.

Retaliation by Employers:

Title VII prohibits retaliation by employers against employees who complain about sexual harassment or other Title VII violations.

Same-Gender Harassment

Title VII protection extends to individuals who are sexually harassed by members of the same gender.

The Equal Employment Opportunity Commission (EEOC) monitors compliance with:

Title VII.

Gender Must Be a Determining Factor

To succeed in a suit for gender discrimination, a plaintiff must demonstrate that gender was a determining factor in the employer's decision to hire, fire, or promote him or her.

If another similarly situated person who did not serve in the military or engage in a protected activity was treated more favorably than the plaintiff, the employer has violated the

USERRA.

If a returning service member sues an employer for violations of the USERRA and is successful, she or he could receive not only damages and reinstatement but also

a promotion.

If a job applicant or an employee with a disability, with reasonable accommodation, can perform essential job functions, however, the employer must make the

accommodation

Title VII of the Civil Rights Act neither requires nor prohibits

affirmative action.

When an employer replaces an older, higher-salaried employee with a younger, lower-salaried worker, the plaintiff must prove that the discharge was motivate by

age bias in order to establish a case of age discrimination.

Constructive discharge may also be used in cases involving discrimination based on:

age or disability.

The Age Discrimination in Employment Act(ADEA), protects federal and private-sector employees from retaliation based on

age-related complaints

Race is interpreted broadly to apply to the:

ancestry or ethnic characteristics of a group of persons.

If an employer's standards or policies for selecting or promoting employees have a discriminatory effect on employees or job applicants in these protected classes, then a presumption of illegal discrimination:

arises.

When the burden shifts, if the employer can articulate a legitimate reason for the action, the burden shifts:

back to the plaintiff.

A defense applies when discrimination against a protected class is essential to a job—that is, when a particular trait is a

bona fide occupational qualification (BFOQ).

An employee alleging discrimination must file a claim with the EEOC before a lawsuit can be:

brought against the employer.

An employer may defend against a claim of disparate-impact (unintentional) discrimination by asserting that a practice that has a discriminatory effect is a

business necessity.

Usually, the courts decide whether an accommodation constitutes an undue hardship on a

case-by-case basis.

Once an affirmative action program has succeeded in the goal of remedying past discrimination, it must be

changed or eliminated.

In Limitations on Class Actions, the Court held that to bring a class action, employees must prove a:

company-wide policy of discrimination that had a common effect on all the plaintiffs covered by the action.

ADA provisions require employers to keep their employees' medical information

confidential

National origin refers to discrimination based on a person's birth in another:

country or their ancestry or culture.

The Lilly Ledbetter Fair Pay Act made discriminatory wages actionable under federal law regardless of when the:

discrimination began.

The first line of defense for an employer charged with employment discrimination is to assert that the plaintiff has failed to meet his or her initial burden of proving that

discrimination occurred.

In comparing the employer's workforce, if the plaintiff can show a connection between the practice and the disparity, they made out a prima facie case and need not provide evidence of:

discriminatory intent.

In Job Applications and Physical Exams, Employers must modify their job-application and selection process so that those with disabilities can compete for jobs with those who

do not have disabilities. Example: A job announcement might be modified to allow applicants to respond by e-mail as well as by telephone, so that it does not discriminate against potential applicants with hearing impairments.

In unintentional discrimination, Prima Facie must first show that the employer's practices, procedures, or tests are:

effectively discriminatory.

If the EEOC decides not to sue, then the

employee may do so.

The prohibition against disclosure applies to other employees acting on behalf of the

employer

In pretext, the plaintiff is required to prove that the plaintiff's age was the real reason for the

employer's decision.

If employers retaliate against employees, employees can sue their

employers when it occurs.

The USERRA covers all

employers, public and private, large and small. • Even an employer with only one employee is subject to its provisions. • The act also applies to United States employers operating in foreign countries.

When Title VII applies to the employer, any employee—including an undocumented worker—can bring an action for:

employment discrimination.

An employer can put a limit, or cap, on health-care payments under its group health policy, but the cap must apply

equally to all insured employees.

By comparing the employer's selection rates of members and nonmembers of a protected class (nonwhites and whites, for instance, or women and men), Under EEOC guidelines, a selection rate for a protected class that is less than four-fifths, or 80 percent, of the rate for the group with the highest rate of hiring generally is regarded as:

evidence of disparate impact.

In Health-Insurance Plans, Workers with disabilities must be given equal access to any health insurance provided to other employees and cannot be

excluded from coverage.

A court may also hold an employer liable for harassment by nonemployees if the employer knew about the harassment and

failed to take corrective action.

The Americans with Disabilities Act (ADA) prohibits disability- based discrimination in all workplaces with:

fifteen or more workers. An exception is state government employers, who are generally immune under the Eleventh Amendment.

After-acquired evidence refers to evidence that the employer discovers after a lawsuit has been

filed

The Age Discrimination in Employment Act(ADEA), prohibits employment discrimination on the basis of age against individuals

forty years of age or older

Under Title VII and other federal acts, employers are forbidden from discriminating against employees on the basis of

gender

In online harassment, employees' online activities can create a

hostile working environment in many ways.

In online harassment, racial jokes, ethnic slurs, or other comments contained in e-mail, texts, blogs, or social media can lead to claims of:

hostile- environment harassment or other forms of discrimination.

In remedies under Title VII, compensatory damages are available only in cases of

intentional discrimination.

To determine whether the Equal Pay Act has been violated, a court looks to the primary duties of the two jobs—the:

job content rather than the job description controls.

Employers are restricted in the kinds of questions they may ask on

job-application forms and during preemployment interviews.

The EEOC can bring a suit even if the employee previously signed an agreement with the employer to submit

job-related disputes to arbitration.

Once a plaintiff succeeds in proving that discrimination occurred, the burden shifts to the employer to

justify the discriminatory practice.

When the harassment of co-workers creates a hostile working environment, an employer may be held liable if management:

knew or should have known about the harassment and failed to take immediate remedial action.

After-acquired evidence of wrongdoing cannot shield an employer entirely from liability for employment discrimination, but it may be used to limit the amount of damages for which the employer is

liable

In discrimination based on gender, previously, plaintiffs had to file a complaint within a:

limited time period.

When constructive discharge is claimed, the employee can pursue damages for:

loss of income, including back pay.

In remedies under Title VII, punitive damages may be recovered against a private employer only if the employer acted with

malice or reckless indifference to an individual's rights.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination against persons who have served in the

military

Under the USERRA, returning service members are to be reemployed in the jobs that they would have attained had they not been absent for

military service.

For the ADEA to apply, en employer must have _____ or more employees, and the employer's business activities must affect _____ ________?

must have twenty or more employees employer's business activities must affect interstate commerce.

The Age Discrimination in Employment Act(ADEA), prohibits mandatory retirement for

nonmanagerial workers

If the EEOC investigates the dispute, the EEOC will attempt to:

obtain the parties' voluntary consent to an out-of-court settlement. If a voluntary agreement cannot be reached, the EEOC may file a suit against the employer on the employee's behalf.

Under the USERRA, military plaintiffs can sue not only the employer but also individual employees who were acting in the

official capacity for the employer. • There is no statute of limitations for bringing a lawsuit.

To be protected under Title VII's retaliation provisions, the plaintiff must have:

opposed a practice prohibited by Title VII and suffered an adverse employment action as a result of that opposition.

Title VII's retaliation protection extends to employees who speak out about discrimination against:

other employees during an employer's internal investigation.

Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as:

other persons not so affected but similar in ability to work.

To establish a prima facie case of discrimination under the USERRA, the plaintiff must establish that the employer took an adverse employment action based in

part on the employee's connection with the military.

If the employer offers a legitimate reason for its action, then the plaintiff must show that the stated reason is only a:

pretext

If the burden shifts back to the plaintiff, to prevail, the plaintiff must then show that the employer's reason is a:

pretext (not the true reason) and that the employer's decision was actually motivated by discriminatory intent.

Because intent may sometimes be difficult to prove, courts have established:

procedures for resolving disparate-treatment cases.

In Intentional Discrimination, a plaintiff must establish Prima facie case:

produce sufficient evidence of their claim that the case will be decided for the plaintiff unless the defendant produces evidence to rebut it.

Employers may be able to avoid liability for online harassment by taking:

prompt remedial action.

In reasonable accommodation, the ADA does not require that employers accommodate the needs of job applicants or employees with disabilities who are not otherwise

qualified for the work

Title VII prohibits employers from discriminating against employees or job applicants on the basis of:

race, color, or national origin.

To avoid liability, the employer must show that its standards or policies have a substantial, demonstrable relationship to:

realistic qualifications for the job in question.

Title VII of the Civil Rights Act prohibits government employers, private employers, and unions from discriminating against persons because of their

religion.

Employers cannot require persons with disabilities to submit to preemployment physicals unless such exams are

required of all other applicants. • An employer can disqualify the applicant only if the medical problems discovered during a preemployment physical would make it impossible for the applicant to perform the job.

An employer may have a defense against a discrimination suit if promotions or other job benefits have been distributed according to a fair

seniority system.

In using constructive discharge, it is most commonly asserted in cases involving:

sexual harassment.

Title VII protects employees against:

sexual harassment.

Any federal, state, or local government affirmative action program that uses racial or ethnic classifications as the basis for making decisions is subject to

strict scrutiny by the courts—the highest standard to meet.

In replacing older workers with younger workers, the greater the age gap, the more likely the plaintiff will

succeed in showing age discrimination.

The USERRA makes military service and status a protected class and gives members of this class a right to

sue an employer for violations.

An employer that can prove both elements normally will not be liable for:

supervisor's harassment.

A constructive discharge also qualifies as a

tangible employment action.

An employee who discovers that an employer has disclosed confidential medical information has a right to sue the employer— even if the employee was not

technically disabled.

Any group health-care plan that makes a disability-based distinction in its benefits violates

the ADA (unless the employer can justify its actions under the business necessity defense).

People suffering from alcoholism are also protected by

the ADA. Employers cannot legally discriminate against employees simply because they suffer from

The EEOC may decide to investigate and perhaps sue the employer on behalf of

the employee.

The ADA requires that employers "reasonably accommodate" the needs of persons with disabilities unless to do so would cause

the employer to suffer an "undue hardship."

Once the prima facie case is established, the burden shifts to:

the employer-defendant, who must articulate a legal reason for not hiring the plaintiff.

After prima facie, burden shifts to the employer to show that:

the practices, procedures, or tests were justified.

The burden-shifting procedure under the ADEA differs from:

the procedure under Title VII.

Under the ADEA, a plaintiff must show that the unlawful discrimination was not just a reason but

the reason for the adverse employment action. In other words, the employee has the burden of establishing but for causation—that is, "but for" the employee's age, the action would not have been taken.

In discrimination based on gender, today, if a plaintiff continues to work for the employer while receiving discriminatory wages, the time period for filing a complaint is practically:

unlimited

When the burden shifts, if the employer did not have a legal reason for taking the adverse employment action, the plaintiff:

wins.

1.By comparing the employer's workforce to the pool of qualified individuals available in the local labor market • The plaintiff must show that:

• (1) as a result of educational or other job requirements or hiring procedures, • (2) the percentage of nonwhites, women, or members of other protected classes in the employer's workforce • (3) does not reflect the percentage of that group in the pool of qualified applicants.

Possible justifications include that the discrimination resulted from:

• A business necessity • A bona fide occupational qualification • A seniority system

In the Substance Abusers (ADA), the act does not protect individuals who:

• Are actually using illegal drugs • Have used drugs casually in the past • They are not considered addicts and therefore do not have a disability (addiction).

Today, an affirmative action program normally is constitutional only if it:

• Attempts to remedy past discrimination • Does not make use of quotas or preferences

Title VII of the Civil Rights Act, applies to:

• Employers with fifteen or more employees • Labor unions with fifteen or more members • Labor unions that operate hiring halls • Employment agencies • State and local governing units or agencies • Most federal government employment

During the 1960s, all of the following were required to implement affirmative action policies:

• Federal and state government agencies • Private companies that contracted to do business with the federal government • Institutions that received federal funding

The connection to the military may be through the plaintiff's:

• Membership, service, or application for service • Providing testimony or statements concerning the military service of another

Employers can:

• Prohibit the use of alcohol in the workplace • Require that employees not be under the influence of alcohol while working • Fire or refuse to hire a person who is an alcoholic if: 1. The person poses a substantial risk of harm to himself or herself or to others. 2. The risk cannot be reduced by reasonable accommodation.

Protected Class:

• Race • Color • National origin • Religion • Gender

Applies to All Title VII Discrimination, plaintiffs can use constructive discharge to establish any type of discrimination claim under Title VII, including:

• Race • Color • National origin • Religion • Gender • Pregnancy

Plaintiffs in lawsuits brought under the ADA may seek many of the same remedies that are available under Title VII, including:

• Reinstatement • Back pay • A limited amount of compensatory and punitive damages (for intentional discrimination)

If the plaintiff successfully proves that unlawful discrimination occurred, they may be awarded:

• Reinstatement • Back pay • Retroactive promotions • Damages

Title VII of the Civil Rights Act, bans discrimination at any stage of employment, including:

• The hiring process • Discipline procedures • Discharge • Promotion • Benefits

Wage Discrimination

The Equal Pay Act requires equal pay for male and female employees working at the same establishment doing similar work.

Pregnancy Discrimination

The Pregnancy Discrimination Act expanded Title VII's definition of gender discrimination to include discrimination based on pregnancy.

Limitations on Class Actions

The United States Supreme Court issued an important decision that limited the rights of employees to bring discrimination claims against their employer as a group, or class.