Employment Law

Closeted or In the Closet

LGBT individuals who do not openly disclose their sexual orientation to others

Glass Ceiling Commission

They investigate the barriers to female and minority advancement in the workplace and suggest ways to combat the situation

Handling Sexual Harassment

(The question will be multiple choice and will ask who is responsible for addressing sexual harassment in the workplace.) o On reporting the sexual harassment, the alleged harasser must be told of the complaint for the employer to effectively address it. § Retaliation will not be tolerated. § Law has separate retaliation provisions.

Can clear oral communication in english be required for hiring and promoting

A job requirement that an employee must be fluent in English is legal if fluency is required to perform the work effectively. The EEOC has pointed out that the degree of fluency required varies from job to job, so blanket fluency requirements that apply equally to the customer service department and to warehouse workers might not be legal. To best be protected from possible Title VII liability, the employer must be able to show that English fluency is required for the job and that the requirement is necessary to maintain supervisory control of the workplace. Perhaps it may be required of an employee who has significant communication with clients, or it may be justified as a BFOQ where the employee could not speak or understand English sufficiently to perform required duties

How did gender identity become protected under title vii

Bostock vs. Clayton County - A US Supreme Court case that extended Title VII protection to gay and transgender employees on the basis of sex discrimination · This case was decided recently, June 15, 2020 and had a historic 6-3 ruling · Implications of this case: Now firing an individual merely for being gay or transgender violates the Civil Rights Act of 1964 · The Employment Non-Discrimination Act (ENDA) bill introduced in congress would extend the current non-discrimination law to include sexual orientation and gender identity, making it illegal to refuse to hire or promote, fire, or harass an employee based on these qualities.

sexual harassment class action trials

Called "white buffalo" because so few are seen. o Many cases are filed, but they are settled rather than litigated as a means of avoiding bad publicity and the possibility of even greater damages if the matter goes to trial § (trial jury would hear employee after employee tell similar stories, and to think there would be enough employees experiencing sexual harassment at work to be certified as a class action is no small feat)

"Code Z"

EEOC created a special classification, Code Z, to designate complaints of "backlash discrimination" from individuals who are or perceived to be - Muslim, Sikh, Arab, middle eastern, or south Asian. o After 9/11 EEOC saw a 250% increase in religion-based discrimination charges involving Muslims

hostile work environment sexual harassment

Hostile work environment sexual harassment occurs when an employee is subject to unwelcome advances, sexual innuendos, or offensive gender-related language that is sufficiently severe or pervasive from the perspective of a reasonable person of the same gender as the offended employee.

Resolving a conflict between an employee who has religious beliefs that conflicts with working

If the employer decides to create a workplace inclusive of LGBT employees, it is generally done under the aegis of diversity and inclusion. Employers should be aware of the religious conflicts non-LGBT employees have alleged based on these policies. As the Buonanno v. AT&T Broadband, LLC case demonstrates at the conclusion of the chapter, the employer should not trample over the rights of other employees in order to address the issue of inclusion and avoid liability. In Buonanno, an employee with religious objections to homosexuality was terminated for refusing to sign a workplace document pledging him to value diversity, including on the basis of LGBT status. The court agreed that it was wrong for the employer to terminate the employee without trying to accommodate his religious beliefs.

Allowances of IRCA

In contrast to title VII, does prohibit employers in certain circumstances from discriminating against employees on the basis of their citizenship or intended citizenship. However, the IRCA makes it illegal for employers to knowingly hire those not legally authorized for employment in the U.S. IRCA also allows discrimination in favour of US citizens as against illegal "aliens" · Also, IRCA allows employers to enact a preference for US citizens if the applicants are all equally qualified. · Employers not subject to title VII prohibitions because of their small size may still be sufficiently large to be covered by IRCA's anti-discrimination provisions. Those employers with 4 to 14 employees are prohibited from discriminating on the basis of national origin; and employers with four or more employees may not discriminate on the basis of citizenship. · The main difference between a proof of discrimination under title VII and IRCA Is that in proving a case of disparate impact, title seven does not require proof of discriminatory intent, while IRCA Requires that the adverse action been knowingly and intentionally discriminatory. · IRCA makes it's unlawful for any person knowingly to hire, recruits, or refer for a fee any non-citizen who is not authorized to work. · IRCA established civil and criminal penalties for hiring undocumented immigrants.

innocent or negligent defense to a claim of discrimination under IRCA

Innocent of negligent discrimination is a complete defense to a claim of discrimination under IRCA Quiz question: Innocent or negligent discrimination is a defense to a claim of discrimination under the Immigration Reform and Control Act (IRCA). · Answer: TRUE · Explanation: The main difference between a proof of discrimination under Title VII and IRCA is that, in proving a case of disparate impact, Title VII does not require proof of discriminatory intent, while IRCA requires that the adverse action be knowingly and intentionally discriminatory. Therefore, innocent or negligent discrimination is a complete defense to a claim of discrimination under IRCA.

Guidelines on Discrimination Because of Religion or National Origin

Internal communication of the obligation to provide equal employment opportunity without regard to religion or national origin. · Development of reasonable internal procedures to ensure that the equal employment policy is fully implemented. · Periodic informing of all employees of the employer's commitment to equal employment opportunity to all persons, without regard to religion or national origin. · Enlistment of the support and assistance of all recruitment sources. · Review of employment records to determine the availability of promotable and transferable members of various religious and ethnic groups. · Establishment of meaningful contracts with religious and ethnic organizations and leaders for such purposes as advice, education, technical assistance, and referral of potential employees. · Significant recruitment activities at educational institutions with substantial enrollments of students from various religious and ethnic groups. · Use of the religious and ethnic media for institutional and employment advertising

Pregnancy Discrimination Act

Pregnancy discrimination Act (PDA) Prohibits an employer from using pregnancy, childbirth, or related medical conditions as the basis for treating an employee differently than any other employee with a short-term disability if that employee can perform the job · Illegal ways for a company to treat pregnant employees: o Refuses to hire pregnant applicants, terminates over pregnancy, does not provide benefits to pregnant employees on an equal basis w/ short term disability of other employees, refuses to allow pregnant employee to continue working even though they want to....etc

National origin

Refers to the country (including those that no longer exist) of one's birth or of one's ancestors' birth.

Requirements for making a sexual harassment case

Requirements for Hostile Environment Sexual Harassment § Harassment be unwelcomed by the harassee § Harassment be based on gender § Harassment be sufficiently severe or pervasive to create an abusive working environment § Harassment affects a term, condition, or privilege of employment § Employer had actual or constructive knowledge of the sexually hostile working environment and took no prompt or adequate remedial action o Requirements for Quid Pro Quo Sexual Harassment: § Exchange for some workplace benefit § Harasser must have some sort of workplace power or position § The exchange of sex for benefit will leave some type of paper trail (promotion, bonus, etc)

Benefits for LGBT employees

Spousal benefits Bereavement leave Sick leave Trans-inclusive health insurance and transitioning (73% of employers offer this)

quid pro quo sexual harassment

The employer requiring some type of sexual activity from the harassed as a condition of employment or workplace benefits i.For there to be an exchange for some workplace benefit, the harasser generally must have some sort of workplace power or position (will often leave a paper trail, promotion, raise, termination

Prima Facie case of national origin discrimination

The person is a member of a protected class (articulate the employee's national origin). They were qualified for the position for which they applied or in which they were employed. The employer made an employment decision against the employee or applicant. The position was filled by someone who was not a member of the protected class

gender bias in the workplace

Title VII and state-fair employment practice laws regarding gender cover the full scope of the employment relationship (unless it's a BFOQ), gender may not be the basis of any decision related to employment, including the following: Advertising for available positions, and specifying a particular gender as preferred Asking questions on an application that are only asked of one gender Asking questions in an interview that are only asked of one gender Requiring one gender to work different hours or job positions for reasons not related to their ability/availability Disciplining one gender for an act for which the other gender is not disciplined Providing/not providing training for one gender while doing so for another

gender stereotyping

Workplace decisions are based on ideas of how a particular gender should act or dress, or what roles they should perform or jobs they should hold Has little or nothing to do with an individual employee's qualifications or ability to perform

citizenship

informed and active membership in a political community

glass walls

invisible barriers that confine minorities and women to certain types of positions within organizations

Elements of hostile environment sexual harassment

o Harasser creates an abusive, offensive, or intimidating environment for the harassed o Offensive work environment to which one gender is subjected but not the other

gay pride month

o Nationwide celebration each June, culminating in a parade comprised of many types of contingents, including businesses. o Many companies provide employees with information and novelty items to be passed out to attendees o Gay Pride Month commemorates the event of June 1969 when police raided a known gay bar in New York and were met with resistance by the patrons and people on the street. This is considered the beginning of the modern LGBT rights movement

Fetal protection policies

o Policies adopted by an employer that limit or prohibit employees from performing certain jobs or working in certain areas of the workplace b/c of the potential harm presented to pregnant employees, their fetuses or the reproductive system or capacity of employees Problem w/ this policy: · They say they are for the protection of the unborn child, but that is not the employer's duty under Title VII · They tend to only protect one group and leave the other vulnerable

Same sex harassment implications of Oncale v. Sundowner Offshore Services, Inc.

· SC ruled that there could be a cause of action for sexual harassment even if both parties are of the same gender, as long as it is clear that the basis for the harassment is not because the harassee is LGBT · This cleared up a lot of confusion among the lower courts about how to handle these cases- if the harassment is unwanted, based on gender, and is pervasive enough to create a hostile environment, then it violates Title VII · HOWEVER, this case did NOT include sexual orientation as a protected class under Title VII. If a woman is being harassed by another woman in the office by calling her names, undermining her work productivity, or inappropriately speaks or touches her based on her status as a woman, then the harassed woman can bring suit under Title VII. If a woman is harassing another woman based on her status as a lesbian (teasing her, calling her derogatory names in the LGBT community) then the harassed woman cannot bring suit under Title VII.

LGBT Protections

· Sexual orientation and gender identity discrimination is NOT included in Title VII. However, the EEOC has determined that both are a type of gender discrimination and the EEOC accepts and pursues claims. · Non-discrimination policies - primary concern for LGBT employees who do not have state or local civil rights ordinances protecting them · Many states and municipalities have passed protective legislation. Thousands of workplaces have included sexual orientation and gender identity in their non-discrimination policies. · With recent SC rulings such as Bostock v. Clayton County, employers should be sure that they have anti-discriminatory policies in place for LGBT employees or candidates should legislation like ENDA be passed into law.