BusLaw-Chapter 22

Covered employment decisions

Act covers all decisions an employer could make that might disadvantage employees because of their race, color, sex, religion, or national origin.

Covered entities Covered entities

All private employers, state and local governments, and education institutions that employ more that employ 15 or more workers Employment agencies, and unions Federal government, but with different procedures

Remedies for Title VII Violations

Back pay accruing from date two years prior to filing of charges. Compensatory and punitive damages under certain circumstances Attorneys' fees Rehiring, reinstatement, retroactive seniority (or front pay if not reinstated) Injunctions against defendant Title VII monetary damages are capped, but defendants may also sue under state laws and get much larger awards.

Defenses to Title VII Claims

Business necessity may be a defense in disparate-impact cases (unintentional discrimination). Bona fide occupational qualification (BFOQ). Where gender or religion is a genuine qualification for a particular job (this defense is not applicable to race, color, or national origin discrimination) For sex to be a BFOQ, the employer must demonstrate a high correlation between sex and the ability to perform a job function. Seniority systems. Various merit defenses (e.g., system that measures earnings by quality or quantity of production, provided that system is organized, communicated and neutrally applied).

Differs from FLSA in that

EPA protects administrative, executive, and professional employees. It also covers all forms of pay.

Pregnancy discrimination

Employers cannot discriminate against women because of pregnancy, childbirth, or related medical conditions.

Race and Color Discrimination

Includes discrimination against African Americans and other racial minorities, such as Eskimos and Native Americans.

National Origin Discrimination

Includes discrimination based on Person's country of origin Person's ancestral country of origin Person's characteristics shared by people of certain national origin

Constructive Discharge

Most Title VII claims involve hiring and firing decisions by the employer that are discriminatory in nature.

Sexual harassment is a form of gender discrimination, and includes

unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: submission to such conduct is a condition of an individual's employment, or submission to or rejection of such conduct is used as a basis for employment decisions affecting an individual, or such conduct has the effect of interfering with one's work performance or creating an intimidating, hostile or offensive work environment.

Sexual harassment can occur when

when the harasser and victim are the same sex.

Independent contractors are

excluded from coverage

Discrimination also includes

failure to reasonable accommodate an employee's religious practices, unless it would cause undue hardship. As a defense, an employer may demonstrate that it cannot reasonably accommodate the religious practice without undue hardship

EEOC may file a lawsuit against an employer on behalf of an employee. If the EEOC does not litigate the matter, the employee can

file a private lawsuit--but only after receiving a "right to sue" letter.

Discrimination means

firing, refusing to hire, failing to promote, or otherwise reducing a person's employment opportunities (e.g., assignments, wages, benefits, working conditions) because of race, color, religion, gender, or national origin. Specific prohibitions also include: Sexual harassment Discrimination because of pregnancy

"Disparate impact" means

hiring, promoting and firing practices that may not be intentionally discriminatory, but have the effect of discriminating against members of a protected class (e.g., rules regarding testing, height, weight). The discrimination does not have to be intentional

Individuals must file Title VII discrimination charges with the EEOC, which will

investigate and help negotiate a settlement if a violation appears to have occurred. An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination.

Plaintiff must show that she/he received

lower pay than an opposite gender employee who performed substantially equal work for the same employer.

Both intentional and unintentional discrimination are

prohibited under Title VII.

Courts have held that the statute also forbids

racial discrimination against a racial majority (i.e., whites).

Defenses (justifications for pay differentials) include:

seniority, merit system, quality or quantity of production, and any factor other than gender (e.g. shift differentials)

Constructive discharge is most commonly used in

sexual harassment claims, but it can also be used to prove a Title VII claim based race, color, national origin, religion, gender, or pregnancy.

Title VII does not prohibit discrimination based on

sexual orientation. Some states have laws that provide this protection. To date, Congress has rejected Employment Non-discrimination Acts that would prohibit employment discrimination based on sexual orientation.

Employer must show

"business necessity" for the business practice. If employer makes a convincing argument, plaintiff must show that employer's business needs could have been advanced by less discriminatory practices that the employer failed to adopt.

Unintentional discrimination by an employer is called

"disparate-impact discrimination." This type of discrimination occurs when an employer practice that is not intended to be discriminatory has the effect of excluding too many people in a protected class (typically from being hired or promoted).

Intentional discrimination by an employer is called

"disparate-treatment discrimination." Plaintiff must show that he was treated differently because of his gender, race, color, religion, or national origin.

Applies to employers with

15 or more employees. If the Act applies to an employer, any employee can file an action under the Act. Employers with less than 15 employees may still have liability under state anti-discrimination laws.

Gender Discrimination

Discrimination based on the employee's gender is prohibited (also referred to as "sex discrimination").

Two jobs are substantially equal when they involve

Equal effort Equal skill Equal responsibility Similar working conditions

Equal Pay Act

Passed in 1963 as an amendment to FLSA, the Equal Pay Act forbids pay discrimination against men and women based on gender

There are two major categories of sexual harassment:

Quid pro quo ("this for that") involves a promise of job rewards in exchange for sexual favors, or threat of punishment for rejection of sexual requests. Hostile work environment is when an abusive environment is created by words or acts related to one's sex (e.g., discussing sex, touching, comments on sexual attributes, offensive language, sexual photos displayed).

Religious Discrimination

Religion" includes beliefs sincerely held with the strength of traditional religious views

: Title VII of the 1964 Civil Rights Act

The Act prohibits employment discrimination based on race, color, religion, gender, or national origin ("protected classes").

Title VII also prohibits retaliation by employers

This occurs when an employer takes unfavorable actions against an employee who complains about sexual harassment or another Title VII violation.

Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces

Title VII and other federal employment discrimination statutes. States also have administrative agencies that handle employment discrimination issues.

Religious educational institutions are usually immune from

Title VII when they discriminate on basis of religion for jobs in which it is critical (e.g. religion professors in a denominational seminary).

Plaintiff must establish that a practice has

a disparate impact on a protected class (requires a statistical showing of the impact of the employment practice).

A "constructive discharge" charge arises when

an employee quits because the employer created working conditions so intolerable that a reasonable person would be compelled to quit.

The Age Discrimination in Employment Act (1967) prohibits

arbitrary age discrimination against employees who are 40 years of age or older. Applicable to employers with 20 or more employees.

Plaintiff must establish a prima facie case (showing all required elements) for

discrimination action. This creates the presumption of discrimination.

Amended by Paycheck Fairness Act of 2009, which closed some loopholes that made

discrimination easier and provided additional remedies (compensatory and punitive damages) for wage discrimination.

Lillie Ledbetter Fair Pay Act of 2009 (passed in response to a USSC case) provides that

that the 180-day SOL begins each time a discriminatory payment is made to a plaintiff.

If employer provides such proof, plaintiff must show

that the challenged employment decision was actually the result of discrimination—and that the employer's reason was a pretext.

Charges must first be filed with

the EEOC before bringing a private lawsuit.

Ensures employees are evaluated on

the basis of ability rather than age. Prohibits mandatory retirement for non-managerial workers based on age.

Plaintiff must prove that age was

the reason for termination. Employee has burden of proof to show "but for" causation.

Then the burden of proof shifts to the employer to

to show that the employment decision was legitimate and nondiscriminatory; otherwise, plaintiff wins.

Disparate (different) treatment of employees results in unlawful discrimination when an individual is

treated less favorably than other employees because of race, color, religion, national origin, or sex ("intentional discrimination").