BUS LAW CH 12: Employment Discrimination

Americans with Disabilities Act (ADA) of 1990

- Seeks to eliminate discriminatory employment practices by employers with 15 or more employees against persons with disabilities that would prevent otherwise-qualified individuals from obtaining or continuing employment, being promoted, or obtaining benefits available to nondisabled employees - o Plaintiff must show: § is disabled § a qualified individual § was subjected to unlawful discrimination because of his disability

Employment at Will Doctrine

- employers may discharge employees with or without cause without triggering liability

State Antidiscrimination Statutes

- tend to cover more employers, with some states imposing antidiscrimination statues on small business with just one employee - expanded protected-class membership, most notably to discrimination based on sexual orientation or gender transformation

Intentional Discrimination Cases

- the plaintiff must prove a prima facie case by showing that certain methods resulted in statistically significant differences that adversely impacted members of a protected class - Once the prima facie elements are established, the burden of proof then shifts to the employer to provide evidence that the challenge practice is job-related for the position in question and is a business necessity - The plaintiff may still prevail if he proves that the employer refused to adopt an alternative practice that would satisfy the employer's interest without having the adverse impact

Age Discrimination in Employment Act (ADEA) of 1967

-Employers that have 20 or more employees are prohibited from discriminating against employees on the basis of their age once employees have reached age 40 - § Protected-class membership (40 or over) § Satisfactory job performance (based on employer's legitimate expectations) § Adverse job action such as termination or demotion § Replacement with someone substantially younger (or more favorable treatment toward someone substantially younger) § Other evidence that indicates that it is more likely than not that the employee's age was the reason for the adverse employment action - prohibit mandatory retirement policies - only protects older employees

Mixed Motives (Hopkins standard)

-Even when cases involved unlawful discriminatory reasons for the employment action, so long as the employer could cite even on legitimate reason, the employee could not recover under a disparate treatment theory - when the cause of the employment action is motivated by both legitimate and discriminatory motive - An employee is protected under Title VII in a case where legitimate motives are mixed with illegitimate motives if the employee proves the protected-class membership was a substantial factor in the decision-making process.

McDonnell Douglas Corp v. Green

Case that established criteria for disparate treatment - plaintiff must establish a prima facie case of discrimination - they are a member of a protected class - applied and qualified for the job and met the employer's legitimate expectations - rejected by the employer - employer continued to seek applicants or filled the position with a person outside the protected class

Conciliation Negotiations

EEOC has an affirmative statutory duty to make good faith efforts in favor of settlement of the case instead of filing a lawsuit - after this fails, then the EEOC can file suit

Bona Fide Occupational Qualification (BFOQ)

Federal antidiscrimination statutes allow employers to hire and employ on the basis of religion, gender, or national origin in certain instances when the classification is a bona fide occupational qualification that is reasonably necessary to the normal operation of the particular business or enterprise - Allows exclusion or persons with disability if the person, with or without reasonably accommodation, cannot perform essential job function

substantially younger requirement

If a plaintiff is attempting to prove age discrimination based upon the fact that younger employees are treated more favorably, then the plaintiff must prove that the younger employees are substantially younger --the age difference must be at least 10 years

PriceWaterhouse v. Hopkinso

In evaluations and recommendations for Hopkins' promotion, several partners criticized her using gender stereotypical, demeaning comments and she was not place for a partnership vote again. § Hopkins sued under Title VII using a theory of disparate treatment, but the firm pointed to the documented legitimate reasons relating to Hopkin's inability to work as a team member § The case involved both legitimate reasons for the job action that were mixed with illegitimate discriminatory motives as evidences by the evaluations written by the partners § The court created mixed motives - ruled that her burden of proving that gender was a substantial factor was met because the words in the evaluations were very closely tied to gender

Griggs v. Duke Power Co

The supreme court recognized that intent was not always a necessary element to prove discrimination and that certain evaluation techniques for employee selection, promotion and assignment (written tests, height and weight requirements) could be administered uniformly to all candidates yet still impact certain protected class members adversely

Disparate Impact (Griggs standard)

Title VII prohibits an employer from using a facially neutral practice (one that applied to all employees regardless of class membership) that has an unlawful adverse impact on members of a protected class

Protected Classes

Under Title VII statutory protection is extended only to those who have been discriminated against based on their membership in a protected class (race, color, nationality, gender, religion)

EEOC Uniform Guidelines on Employee Selection Criteria

adverse impact as occurring when members of a protected class are selected at a rate less than 80% of that of the highest scoring group

Injunction

court order to crease from engaging in a particular unlawful practice or an order compelling a party to act

pretext

false reason

Faragher/Ellerth Defense

if the sexual harassment does not result in tangible employment action, employers may avoid liability by proving that a system was in place that was intended to deter, prevent, report, and correct any harassment - Employer must also prove that the employee failed to take advantage of the preventative or corrective opportunities that the employer provided

Diaz v. Pan Am World Airways Inc

made it clear that customer preference could not be used as a BFOQ, rejecting the airline's justification for employing only women as flight attendants based on passenger surveys

Seniority

must be based on objective elements of seniority (actual number of years on the job) and the employment decisions must have been made in good faith and pursuant to that established objective system

employee misconduct

o When an employee commits an act of misconduct, so long as the act has been identified to the employee as misconduct, employers may discipline the employee in accordance with the company's general practices without liability for discrimination o So long as the employer shows that the misconduct was sufficiently gave as to warrant the adverse employment action, an employer may use evidence of misconduct acquired post-complaint in its defense

Executive order 11246

o extended AA reach by requiring that employers who have a contract with the federal government for services and supplies initiate good faith efforts to implement an affirmative action plan in their companies o May also be imposed on an employer by courts as a judicial remedy when they find that the employer acted in a pattern of egregious discrimination against employees

Qualified Individual

someone who, with, or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires

Regarded-as Test

standard applies when an employee is regarded as having an impairment by her employer (even if the impairment is not actually a disability)

Ricci v. DeStefano

the Supreme court ruled that the City of New Haven's decision to discard results of a promotional exam for firefighters was a violation of Title VII even if the discriminatory treatment was based on the employer's concern that promotion examination results would possible lead to a disparate impact lawsuit

McDonald v. Santa Fe Train

the US Supreme Court held that racial discrimination against white employees violates Title VII if the employer was motivated by race

Adarand Constructors Inc v. Pena

the court ruled that the state and local government affirmative action plans in race-based or gender-based preferences for hiring contractors would be subject to the strict scrutiny standard

Quid Pro Quo Theory

the harasser demands sexual favors as a condition of continued employment or a prerequisite for a promotion or pay raise

US Equal Employment Opportunity Commission v. Abercrombie & Fitch

§ Abercrombie & Fitch was concerned that Elauf's headscarf would conflict with the store's Look Policy and consulted Abercrombie's district manager. Elauf was not hired in the end. § The court focused on the text of Title VII that gives religion favored status and provided a straightforward rule for disparate-treatment claims based on a failure to accommodate a religious practice: An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment discrimination § There was no language in the statute that required such knowledge beforehand in order to trigger liability - the applicant need only show that her need for an accommodation was a motivating factor in the employer's decision

Affirmative Action

§ Companies must work to ensure that their employee workforce reflects the available qualified workforce with respect to race and gender § As long as the company advertises openings properly and conducts legal and appropriate hiring policies, the company is in compliance - legal as long as it attempts to remedy an actual past practice of discrimination and does not employ a system of quotas

ADA Amendments Act of 2008

§ Expanded the definition of disability with specific statutory definitions intended to urge courts to interpret the definition of disability "in favor of broad coverage of individuals under this Act, to the maximum extent permitted by terms of this act" § Expanded the statutory protections to specifically cover disabilities that had been excluded from coverage by virtue of the Supreme Court's ADA case law · Requirement that courts make a determination of one's disability without regard for the ability to correct the condition with "medication, artificial aids" and other "assistive technology" § The plaintiff must still have a physical or mental impairment that substantially limits one or more major life activities

sexual Orientation as a Protected Class

§ If an employer discriminates against an employee based on sexual orientation, it amounts to discrimination based on sex and is thus illegal under federal discrimination statutes § EEOC issued a ruling that recognized discrimination based on sexual orientation as a form of sex discrimination · Reasoned that sexual orientation is inherently a sex-based consideration and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII

Ledbetter v. Goodyear Tire and Rubber Co

§ Male counterparts had been paid more for doing the same work that she did § Although the Supreme Court did not deny that Ledbetter had been discriminated against, it ruled that she should have filed suit within 180 days of receiving her first unfair paycheck, not 180 days from the time she learned of the difference in pay § Any employer that could hide pay discrimination of six months could effectively avoid liability under the law and leave workers with no recourse

Samson v. Federal Express Corporation

§ Samson wanted a job however employers needed to pass the DOT medical examination - because insulin dependent diabetics are automatically disqualified from being medically certified as physically qualified from being medically certified as physically qualified to operate a commercial motor vehicle in interstate commerce. § He could not get the job because he failed the medical examination § The court overturned and ruled in favor of Samson - reasoned that there was a genuine issue of fact as to whether the test-driving requirement was truly "essential" to the job - the court cited evidence from other FedEx technicians that the amount of time test-diving FedEx vehicles was insignificant · There are 9 other licensed truck drivers at that facility among whom the test-driving could be distributed

Oncale v. Sundowner Offshore Services

§ Supreme court held that an employee on an oil rig who was subject to homosexual advances by his co-workers was protected under Title VII · Title VII was gender- neutral and recognized sexual harassment as a form of discrimination regardless of the gender of the victim or the harasser

sexual harassment

§ Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are considered violations of Title VII if the conduct · Occurs in the context of explicit or implicit conditions of an individual's employment or as a basis for any employment decisions · Unreasonably interferes with an individual's work performance or creates an offensive work environment · Initiating a discussion of sexual acts, activities, or physical attributes in workplace areas · Engaging in unnecessary or excessive physical contact · Using crude, demeaning, or vulgar language · Displaying pornographic pictures or movies

Zarda v. Altitude Express

§ Zarda, a gay worker, was fired and insisted that he was fired based on his reference to his sexual orientation. He filed a lawsuit claiming he was discriminated against because of his sexual orientation and his gender · The court considered the EEOC's position on the matter of sexual orientation being a protected class under Title VII and agreed that there was an inescapable link between allegations of sexual orientation discrimination and sex discrimination o Sexual orientation discrimination is also based on assumptions of stereotypes about how members of a particular gender should be, included to whom they should be attracted

Hostile Work Environment

§ a violation of Title VII occurs when the conduct of the harasser is of such a severe and crude nature, or is so pervasive in the workplace, that it interferes with the victim's ability to perform her job responsibilities · Standards are relatively burdensome and require a discriminatory activity that is beyond teasing, offhand comments, or isolated incidents · If the behavior is sufficiently abusive and the abuse led the employee to quit, the employee is still permitted to file a complaint

Disability

§ as a physical or mental impairment that sustainably limits a person's ability to participate in major life activities · Blindness, cancer, heart disease, paraplegia, and acquired immune deficiency syndrome (AIDS) all fit squarely into the disability category · The supreme court 1999 said that any condition that could be corrected was not a disability covered by the act

Ledbetter Act

§ declared that each discriminatory paycheck, not simply the employee's first check, resets the period of time during which a worker may file a pay discrimination claim · Ensures that employees subject to wage discrimination on the basis of race, color, national origin, gender, religion, age or disability have the opportunity to challenge every discriminatory paycheck that they receive.

Punitive Damages

§ intended to deter future conduct of employers · Available only when a plaintiff proves that a private employer acted with malice, in retaliation, or with reckless disregard to the employment discrimination laws

Reasonable Accommodations

§ need to be made as long as the employer does not suffer an undue hardship... May include: · Existing facilities made readily available to individuals with disabilities · Job restructuring, part-time or modified work schedules, reassignments to vacant positions and provision of readers or interpreters · Does not require the employer to provide accommodations that constitute an undue hardship on the employer: o Significant difficulty or expense in the context of the overall resources of the employer, the number of people employer, the effect on expenses or resources, or the impact of the accommodation upon the operation of the facility

burden of proof for disparate treatment

§ shifts to the employer - who must articulate a legitimate, nondiscriminatory reason for the discriminatory action · If the employer does provide a legitimate, nondiscriminatory reason for firing the plaintiff, the third stage of the standard contemplates that the burden then shifts back to the employee to show that the reason given by the employer is not the actual reason for the employment action

vicarious liability of employers

· An employer could be held vicariously liable for sexual harassment by an employee when a nonsupervisory co-worker is the harasser if the employee can prove that the employer was negligent in either o Discovering the conduct o Failing to respond to a sexual harassment complaint made to a supervisor

Smith v. City of Jackson, Miss

· Court held that the ADEA authorizes disparate impact claims but that the employer's burden to show the reasonableness of the business practice at issue is minimal o The employer does not have to meet the higher standard of proof required in Title VII disparate impact cases: that the practice at issue was a business necessity o It is easier for employers to prevail in an ADEA disparate impact action than in a disparate impact action alleging race discrimination under Title VII

strict liability for harassment by supervisor

· If the harassing employee is a supervisor, then the employer is strictly liable for any sexual harassment claim if the harassment culminates in a tangible employment action such as termination or transfer to a less desirable job

Morris v. City of Colorado Springs

· Morris filed suit against Memorial alleging discrimination after her partner threw a heart at her and teased her; she claimed that Mahan engaged in unlawful gender-based harassment and created an abusive and hostile working environment The trial court dismissed the case, ruling that Morris could not establish that the alleged harassment was based on her gender or that it was sufficiently "severe" or "pervasive" to affect her working environment

Disparate Treatment (McDonnel Douglas standard)

· Overt and intentional discrimination - when an employer treats an employee differently based on her membership in a protected class, this constitutes discrimination under Title VII. Makes it unlawful for an employer: o to fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment based of such individuals race, color, religion, sex, or national origin to limit, segregate, or classify employees or applicants for employment in any ways which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual race, color, religion, sex, or national origin

Enriquez v. West Jersey Health System

· Transgender Male o the court held that while Title VII does not bar discrimination based on sexual orientation or gender identity disorders, New Jersey's Law Against Discrimination (LAD) does § because LAD makes it unlawful to discriminate against someone based upon sex and affectional or sexual orientation, individuals who were transsexual or affected by a gender identify disorder were also considered to be members of a protected class and were protected from discrimination

Vance v. Ball State University

· US Supreme court clarified the definition of a supervisor for purposes of liability o With Vance, the alleged harasser did not have the power to hire, fire, demote, promote, transfer, or discipline Vance o The court ruled that the alleged harasser did not qualify as a supervisor and BSU could not be held vicariously liable unless Vance could prove that BSU was negligent in either discovering the conduct or in failing to respond to a harassment complaint made to a supervisor

Equal Employment Opportunity Commission (EEOC)

· agency to monitor employer compliance with the statute and carrying out federal workplace antidiscrimination laws o Created as part of the Civil Rights Act of 1964 o Uses its rulemaking authority, investigatory powers, and enforcement action as necessary to administer the statutory mandates established by Congress - can sue on behalf of an aggrieved employee

Employment Discrimination

· broad based definition encompassing workplace related discrimination that includes o The hiring process o The treatment of employees in terms of promotions and demotions, work schedules, working conditions, and assignments o Disciplinary action such as reprimands, suspension, or termination

prima facie

· establishing certain evidence that is sufficient to prevail in a discrimination claim without proving additional facts, unless disproved or rebutted by the opposing party

direct evidence

· evidence that proves a fact without any further inference or presumption o Specifically saying "I like you, but we prefer a man in that role..."

The Equal Pay Act of 1963

· making it illegal for employers to pay unequal wages to men and women who perform substantially equal work o the employer must pay different wages to employees of the opposite sex o the employees perform equal work on job requiring equal skill, effort, and responsibility o the jobs are performed under similar working conditions

Title VII of the Civil Rights Act of 1964

· the law prohibits discrimination in the workplace on the basis of an employee's race, color, national origin, gender, or religion, and pregnancy (protected classes) - applies to any private sector employer with 15 or more full-time employees, as well as to labor unions, employment agencies, state and local governments, and most federal government employees - Covers hiring and firing, promotion and demotion, disciplinary actions, work schedule, pay rate, job assignment, and other employer actions

Business Necessity

· used to rebut a disparate impact claim when a certain practice or procedure has impacted a particular protected class o When a business can justify discrimination on the basis that it is legitimately necessary to the business operations of the company