Ch. 14; HR: Employment Discrimination

Qualified Individual with a Disability

A person who has a physical or mental impairment that substantially limits a major life activity who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds

What is the EEOC empowered to do?

- Conduct investigations - Interpret statutes - Promote conciliation between employers/employees - File lawsuits to enforce the law

Remedies plaintiff could claim for an Equal Pay Act violation

- Court may award back pay and attorney fees. - Employer cannot remedy violation by transferring the claimant to a different position or reducing the higher-paid worker's wage

What is the scope of Title VII - who does it apply to?

- Employers of 15+ employees - Labor unions with 15+ members - All employment agencies - State/local governments and their agencies - Most federal government employment

It is the right of all employees and job applicants to:

1. Be treated without discrimination 2. To be able to sue employers if they're discriminated against

Statutory defenses under Title VII in response to cases of discrimination in the workplace

1. Bona Fife Occupational Qualification 2. Merit 3. Seniority

Statutory Defences to Age Discrimination

1. Bona fide occupational qualification A. Must hire employees of only a certain age to safely and efficiently operate the business in question. 2. Any reasonable factors other than age 3. Executive exemptions when an individual may be mandatorily retired after age 65. A. They've been employed as a bona fide executive for at least 2 years immediately before retirement with employer B. At retirement he/she is entitled to non-forfeitable benefits of at least $44k annually.

Defenses to Equal Pay Act of 1963

1. Bona fide seniority system 2. Bona fide merit system 3. Pay system based on quality or quantity of output/product 4. Any factors other than sex Defense must be enacted in good faith and must be applied to both men/women.

Older Workers Benefit Protection Act

Amended ADEA to prohibit age discrimination with regard to employee benefits.

Why are Disparate-Impact Discrimination cases hardest to prove?

Because many tests appear neutral in face.

Health Conditions meeting disability requirements under federal law

Blindness, alcoholism, heart disease, cancer, muscular dystrophy, cerebral palsy, paraplegia, diabetes, acquired immune deficiency syndrome (AIDS), and morbid obesity. Intellectual disability

What are remedies a claimant can claim under a Title VII action suit?

Can recover back pay, compensatory and punitive damages, attorneys' fees and court costs, and remedial seniority dating back to the time when the claimant was discriminated against.

Procedure of filing an Age Discrimination case

Claimant can file through EEOC or bring a private lawsuit under the ADEA - P must show that they belong to the statutory protected age group of 40+ - Was qualified for the position held - Was terminated under circumstances giving rise to an inference of discrimination

What must a claimant prove to bring action for Disparate-Treatment Discrimination?

Claimant must make a prima facie case by meeting the burden of proof that an illegal discrimination occurred. After burden is met, shifts to defendant employer to prove nondiscriminatory reasons or an acceptable defense. 1. They're a member of a protected class 2. They applied for and were qualified for the position 3. They didn't receive the position due to the employer's rejection 4. Employer maintained position as open and sought applicants with the claimant's qualifications or filled position with a person not in a protected class.

What must a claimant prove to bring action for Disparate-Impact Discrimination?

Claimant must make a prima facie case by meeting the burden of proof that an illegal discrimination occurred. After burden is met, shifts to defendant employer to prove nondiscriminatory reasons or an acceptable defense. Claimant must use statistical data showing that the employer's conduct and employment practices are discriminatory.

What is the procedure for bringing a Title VII Action?

1. Private complainant must file a complaint with EEOC. 2. EEOC may investigate victim's alleged discrimination claim and attempt to reconcile parties' dispute. 3. EEOC may chose to file a lawsuit on behalf of claimant or issue a right to sue letter to the claimant if they choose not to bring suit so they can bring their own lawsuit against the employer. 4. Complainant now has right to sue the employer

Tips for avoiding sexual harassment

1. Senior management must make clear its position that sexual harassment in any form will not be tolerated. 2. An explicit written policy on sexual harassment must be in place and must widely disseminated in the workplace and given to every new employee. 3. Make sure employees know what is, and is not, sexual harassment. 4. Provide a gender-neutral training program on sexual harassment for all employees. 5. Establish an efficient system for investing charges of sexual harassment and punishing violators. 6. Make sure complaints are filed with neutral party, not with employer's supervisor. 7. Thoroughly investigate and resolve complaint, punishing every violation appropriately. If no violation found, explain to the complainant why there was no violation.

How do courts interpret same work in a case regarding pay discrimination in the workplace?

4 criteria: 1. Equal Skill 2. Equal Effort 3. Equal Responsibility 4. Similar Working conditions

Standard for determining degree of offensive conduct in the workplace

Conduct in workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.

Pregnancy Discrimination Act of 1978

Created as an amendment to Title VII and expands the definition of gender discrimination to include discrimination against pregnancy.

Affirmative Action

Designed to "make up" for past patterns of discrimination by providing certain job preferences to members of minority racial/ethnic groups, females, and other protected-class applicants in hiring/promotion.

International Reach of US Anti Discrimination Laws - Civil Rights Act of 1991

Expressly protects US citizens employed in a foreign country by US-controlled employers Foreign operations not controlled by US employers not covered. Laws contain an express exception that protects US-controlled employers from conflicting foreign laws.

Pre-established employment quotas are lawful. T/F

False

Equal Employment Opportunity Commission (EEOC)

Federal Agency empowered to enforce federal anti-discrimination laws. Has power to seek injunction Members are appointed by POTUS

Civil Rights Act of 1991

Federal statute enacted in response to Supreme Court cases that limited employee rights. Combines provisions from 2 different statutes; CRA 1866 and 1964 Amended the original civil rights act, making it easier to bring discrimination lawsuits. Expanded remedies to victims of employment discrimination

Remedies/Damages for Age Discrimination cases

Liquidated damages; Back pay for 2yrs, attorneys' fees, and equitable relief; hiring, reinstatement, or promotion. Compensatory Damages Punitive (rarely awarded)

Reasonable accommodations may include:

Making facilities wheelchair accessible Modifying work schedules (ex. Part-time) Providing equipment/devices Modifying examinations/training materials and procedures. Providing qualified readers or interpreters

Equal Pat Act of 1963

Men and women are protected from pay discrimination based on sex (gender). Act prohibits disparity (only applies to genders) in pay between men and women when performing the same job. Means an employer should pay substantially the same both males/females for a job where 2 employees, a male/female, have the same skills, demonstrate the same effort, have the same responsibilities, and perform the work in the same working conditions.

Civil Rights Act of 1964 (Title VII)

Most common basis for a claimant to seek damages because of employment discrimination.

Define: Sexual Harassment

Occurs when hiring, promoting, salary increases, and positive evaluation practices are based on the exchange of sexual favors. Other conduct that's considered sexual harassment: Lewd remarks, touching, intimidation, posting of indecent materials, and other verbal/physical conduct of a sexual nature.

Procedures for filing a claim under Americans with Disabilities Act

Person must first file charge with EEOC - EEOC may choose to take action - EEOC may permit individual to pursue private action

Race Norming

Practice of adjusting scores on a standardized test by using separate curves for different racial/ethnic groups. Banned by Civil Rights Act of 1991

Age Discrimination in Employment Act of 1967 (ADEA)

Prohibited in all employment decisions: 1. Hiring 2. Promotions 3. Payment of compensation 4. Other T&Cs of employment

Title VII of the Civil Rights Act of 1964

Prohibits discrimination in employment decisions on the basis of race, religion, sex, color, or national origin (intentional/unintentional); Applies to any term, condition, or privilege of employment Covers a wide range of employment decisions, including hiring and firing, payment of compensation and benefits, promotion and demotion, segregation of employees, availability of job training or apprenticeship opportunities and working conditions.

Title VII of CRA 1964: Race, Color and National Origin Discrimination

Prohibits employer from discriminating against employee/applicant on basis of color, race, or national origin.

Title VII: Sex or Gender Discrimination

Prohibits employers from discriminating against a person solely on basis of sex/gender. Applies equally to men and women, and employers are prohibited from classifying occupations as male/female unless gender of an employee/applicant is essential to job.

Title VII: Religious Discrimination

Prohibits employers from discriminating against persons based on religious beliefs. Does not provide absolute rights to an individual to exercise their religion. Employer must provide a reasonable accommodation to employee to exercise their religion so long as the accommodation doesn't cause an undue hardship on the employer.

Title I of the ADA

Prohibits employment discrimination against qualified individuals with disabilities. Requires employer to make reasonable accommodations to individuals with disabilities that don't cause employer undue hardship.

Title VII: Sexual Harassment

Prohibits sexual harassment in the workplace.

What individuals are covered under the Americans with Disabilities Act

Qualified individuals with a disability, disabled persons and those with health conditions.

Protected Classes

Race Color Religion National Origin Gender Age Disability

Issues with affirmative action

Reverse discrimination Race norming

In what cases is compensation disparity permissible?

Someone may have asked for a larger salary from the onset when receiving a job offer.

Disabled Person

Someone who has a physical or mental impairment that substantially limits life activities, who has a record of such an impairment, or who is regarded as having such an impairment.

An overwhelming majority of sex discrimination cases are brought by women. T/F

True

To seek damages under Civil Rights Act(s), person must file lawsuit within period covered by state's statute of limitations. T/A

True

Define: Hostile Work Environment

US SC held that a hostile environment is sexual harassment when "workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" It is judged by the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

Statutory Defenses: Seniority

When employees are given preferential treatment based on their length of service. To apply, seniority system must: 1. Apply equally to all employees 2. Follow industry standards 3. Not be intended to discriminate 4. Be free from any illegal discriminatory purpose.

Statutory Defenses: Merit

When employer uses a professionally developed ability test, which is not created, intended, or used to discriminate, this is permissive even when test has adverse impact on a class, so long as it is manifestly related to job performance.

Define: National Origin

A protected class that refers to ancestry or ethnic characteristics (a country of a person's ancestors or cultural characteristics). Not based on alienage (citizenship); thus an employer can refuse to hire a non-US citizen.

Define: race

A protected class that refers to broad categories; Caucasian, Asian, Native American, and African American.

Define: Color

A protected class that refers to the color of a person's skin.

Statutory Defenses: Bona Fide Occupational Qualification (BFOQ)

Allows employer to discriminate in hiring on basis of gender, religion, or national origin (but not race/color) when doing so is "reasonably necessary" for performance of job. Must be job related, and a Business necessity (Discrimination in hiring when a certain job characteristic is necessary to perform the job. )

Reverse Discrimination

Discrimination in favor of members of groups that have been previously discriminated against. Title VII still protects members of a majority class. Therefore, can sue to recover damages or any other applicable remedies. Use of quotas fosters this

What are the 2 forms of discrimination recognized under Title VII?

Disparate-Treatment Discrimination Disparate-Impact Discrimination

What is the difference between Disparate-Treatment and Disparate-Impact discrimination?

Disparate-Treatment occurs when an employer discriminates against a specific individual or employee because of that persons race, color, national origin, sex, or religion. Disparate-Impact occurs when an employer discriminates against an entire protected class through practices, procedures, or tests.

Remedies for Civil Rights Act(s) of 1866/1871

Don't have specific remedies Monetary and equitable remedies typically applicable. Compensatory, punitive, attorney fees

What is the purpose of the procedure for bringing a Title VII Action?

EEOC wants to first see if there are multiple people facing the same problem with the employer. It would no longer be an individual problem, it would be a broad problem. This is important because want to have a uniform way of applying the law.

What are defenses in sexual harassment cases?

Employer took "reasonable care to prevent and correct promptly any sexually harassing behavior" by establishing and distributing effective harassment policies and procedures. That the employee suing for harassment failed to follow these policies and procedures.

Forbidden conduct under the Americans with Disabilities Act

Employers are forbidden from asking a job applicant about the existence, nature, and severity of a disability. Pre-employment medical examinations are forbidden before a job offer.

Who does ADEA apply apply to

Employers engaged in business activity that affects interstate commerce with 20+ employees Employment agencies and Unions with at lease 25+ members or operate a hiring hall ADEA applies to employees who are of age 40+ Covered employers cannot establish mandatory retirement ages for their employees

Uniform Guidelines on Employee Selection Procedures (1978)

Empowers all government agencies to enforce civil rights laws and provide guidance to employers and other interested parties when an ability test is valid and job related.

Civil Rights Act of 1866

Enacted following the Civil War. - Guarantees all persons in the US the same right to make and enforce contracts and to have the full and equal benefit of the law. - Prohibits racial and national origin employment discrimination.

Civil Rights Act of 1871

Enacted to prohibit discrimination by state and local governments

Americans With Disabilities Act

Intended to prevent employer from discriminating against employees/applicants because of their disabilities by requiring employers to make reasonable accommodations to an employee or qualified applicant unless the necessary accommodation imposes an undue burden on employer's business Providers of public transportation, telecommunications, and public accommodations must also reasonably accommodate individuals with disabilities. Applies to employers with 15+ employees.

Who is exempt from coverage by Title VII

Indian Tribes Tax-exempt private clubs

Remedies someone could claim in an American with Disabilities suit

Injunction Reinstatement with back pay Attorney's fees and court costs Compensatory and punitive damages