Chapter 18 - Employment Discrimination
Quid pro
"something in exchange for something else." Occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, and the like.
To prove disparate-impact discrimination
(1) Pool of applicants - comparing employer's workforce to the pool of qualified individuals available in the local labor market. Must show that educational or other job reqs or hiring procedures, % of protected class in employers workforce, and connection between practice and the disparity = prima facie case, no need to provide evidence of discriminatory intent. (2) Rate of hiring -comparing the selection rates of protected class.
What requirements must be me to sue under a particular law
1. Employee must show employer is interstate 2. Must prove # of employees 3. Must be a protected class 4. Must be qualified to do the job 5. Plaintiff must file with the EEOC Plaintiff must have all 5 to sue = prima facie case
Prima Facie Case
A case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces evidence to rebut it.
Bona fide occupational qualifications (defense)
A defense to employment discrimination. Identifiable characteristics reasonably necessary to the normal operation of a particular business. These characteristics can include gender, national origin, and religion, but not race.
Affirmative Action
AA programs go further and attempt to make up for past patterns of discrimination by giving members of protected classes preferential treatment in hiring or promotion. Title VII neither prohibits or requires AA. These programs have been controversial, however, particularly when they have resulted in reverse discrimination.
Reasonable Accommodation
ADA does not require that employers accommodate the needs of the job applicants or employees with disabilities who are not otherwise qualified for the work. If applicant or employee can perform essential job functions with a reasonable accommodation, the employer must make the accommodation. Employers than don't provide this must prove undue hardship in terms of being difficult or expensive.
Equal Protection Issues
Because of their inherently discriminatory nature, affirmative action programs may violate the equal protection clause of the 14th amendment to the US constitution. An affirmative action program normally is constitutional only if it attempts to remedy past discrimination and does not make use of quotas or preferences.
Discrimination
Can be intentional or unintentional. In both situations you are liable as an employer. intentional = disparate-treatment discrimination. unintentional = disparate-impact discrimination.
Who is the defendant and who is the plaintiff?
Defendant = employers Plaintiff = employees
Procedures under the Age Discrimination Employment Act
Differs from title VII. A plaintiff must show that they got discriminated against based on THEIR age, not that someone younger got hired. Only applies in non mgmt positions. (Must show) the unlawful discrimination was not just a reason but the reason for adverse employment action. The employees has the burden of establishing "but for" causation that for the plaintiff's age this adverse action would not have happened.
Substance Abusers
Drug addiction is a disability under the ADA because it substantially limiteds impairment. (Only persons with former drug addictions who have completed or are now in a supervised drug-rehab program). People suffering from alcoholism are protected by Americans with Disability Act (ADA).
Business necessity (defense)
Employer defend against unintentional (disparate-impact discrimination) by asserting that a practice has a discriminatory effect is business necessity.
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. TEA is a significant change in employment status or benefits (fire, refuse promotion, demotion, or resignation to a position with significantly different responsibilities).
Sexual Harassment Remedies (under title VII)
If plaintiff successfully proves that unlawful discrimination occurred, they may be awarded reinstatement, backpay, retro, and damages. Compensatory damages are available only in cases of intentional discrimination.
Disparate-treatment discrimination (intentional)
Intentional discrimination by an employer against an employee. ADD MORE?
Age Prima Facie
Member of protected age group of 40 plus, 20 plus employees, interstate commerce, file with EEOC, employer qualified for job
Title VII of the Civil Rights Act of 1964
Most important statute. Prohibits discrimination against employees, applicants, and union workers on the basis of race, color, national origin, religion, or gender at any stage of employment. Applies to employers with 15 plus employees. Prohibits both intentional (Disparate-treatment) and unintentional (Disparate-impact) discrimination. To sue must be: interstate, 15 plus employees, plaintiff qualified to do job, and file with EEOC
What is disability?
Must have at least 1 to be in protected class: (1) physical/mental impairment (walk, talk, hear, see) that limits major life activities, (2) record as such impairment, (3) regarded having such an impairment/disability.
Mitigation of damages
Must look for another job, paid for lost earnings until new job is accepted.
Seniority systems (defense)
NOT AN ANSWER ON THE TEST
Constructive discharge
Not fired, still have claim because employer caused intolerable work environment that a reasonable person in the employee's position would feel compelled to quit. (Proving it: plaintiff must present objective proof of intolerable working conditions, which the employer knew or had reason to know yet failed to correct within a reasonable time. Employee's resignation must be a foreseeable result of employers discriminatory action. Employee demotion is one of the most frequently cited reasons for a finding of constructive discharge, particularly when employee was subject to humiliation).
Procedures under the ADA
Plaintiff must show that (1) has disability, (2) is otherwise qualified for job, and (3) was excluded from the employment solely based on disability. Must file claim with EEOC. Plaintiffs may obtain many of the same remedies available under title VII. Includes reinstatement, back pay, limited amount of compensatory and punitive damages.
Lack of Motive (defense)
Plaintiff who cannot prove a discriminatory motive once burden shifts back to them will be unable to establish their case and the employer will have a defense against a charge of discrimination.
Employer protection
Policy must be in place, all employees must know procedure and follow it and also know who to talk to = employers defense. Doesn't matter what level you are in the company. This covers customers and client actions!
Sexual Harassment
Protected under Title VII. can take two forms: quid pro or hostile-environment. Courts determine between the two on a case-by-case basis. Typically, a single incident is not enough to create a hostile environment. Courts factors in assessing the severity and pervasiveness of the alleged sexual harassment include: nature and frequency of the conduct and whether it unreasonably interfered with the victims work performance.
Severity vs. Pervasiveness (Harassment)
Severe - something wrong with act Pervasive - goes over and over again; repeated.
Severe vs. Pervasive
Severe- something wrong with act; one incident is enough Pervasive- goes over and over again; repeated.
State Can Prohibit
Some states (CA, MD, MI, VA, WA) have enacted laws that prohibit affirmative action programs within their borders. Note: some states have more protection than federal law
Melanie and Beau both work at comparable jobs at Technology Impact, Inc. Melanie is paid 15 percent less than Beau. Which of the following is not a legitimate defense to this pay inequality?
The company pays Melanie less because she has a husband who is a highly successful business person
Who can sue under what law/Who are the protected class?
Title 7 = Race, ethnicity, gender and pregnancy, color, national origin, religion (ADEA) Age discrimination in employment act of 67 = Must be 40 or older (ADA) American with disability act 1990s - disabled
(must have) number of employees
Title VII = at least 15 Age = 20 plus American = 15 plus
Discrimination based on Gender
Title VII forbid employers from discriminating against employees on the basis of gender. This includes pregnancy (Under Title VII - The Pregnancy Discrimination Act). Employers are prohibited from classifying jobs as M or F and from advertising positions by gender unless employer can prove that the gender of the applicant is essential to the job. (To prove plaintiff must demonstrate that gender was a determining factor in the employer's decision to fire or refuse to hire or promote).
Race, Color & National Origin
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 then show that its standards have a substantial, demonstrable relationship to realistic qualifications for the job in question.
Discrimination based on Religion
Title VII prohibits employers from treating their employees more or less favorably based on their religious beliefs or practices and cannot require employees to participate in any religious activity or forbid them from participating in one. An employer must "reasonably accommodate" the religious practices of its employees, unless to do so would cause undue hardship to the employer's business (must accommodate even if the belief is not based on doctrines of traditionally recognized religion).
Retaliation by employers
Title VII prohibits this. Employers sometimes retaliate against employees who complain about sexual harassment or other Title VII violations. Retaliation can include demotion, firing, change of terms and conditions, and employee benefits.
Min applies for a job as a receptionist at an accounting firm. If she is denied a job because she is of Asian origin, she may be a victim of
disparate-treatment discrimination
The University Smyth has an admissions policy that requires a certain number of points to be automatically awarded to minority applicants. This type of policy may violate the
equal protection clause
Eastminster Presbyterian Church has an opening for a new head pastor. Mohammed, who is a Muslim, applies for the job. The church declines to hire him and continues to look for other applicants. If Mohammed files a claim of illegal discrimination against the church, the church
may asset a bona fide occupational qualification defense.
Julio lives in an area with a high percentage of Hispanic workers. Many of these workers are legal immigrants who have relatively little college training. If, when Julio applies for his job, he is given an examination designed for a college graduate, and if he and most Hispanic applicants fail to pass the test, the employer
might be engaged in disparate-impact discrimination
The Equal Employment Opportunity Commission (EEOC)
monitors compliance with title 7. Generally investigates "priority" cases, such as cases involving the firing of an employee in retaliation for submitting a claim to the EEOC.
Discrimination based on Age
most widespread form of discrimination. ADEA prohibits employment discrimination on the basis of age against individuals 40 or older. It also prohibits mandatory retirement for non-managerial workers.
Melissa works as a computer data-entry operator at VeraSign. Melissa informs VeraSign that she suffers from carpal tunnel syndrome, causing pain in her wrists rendering her unable to use a keyboard. Melissa requests as an accommodation that VeraSign hire a data-entry employee to enter the information on her behalf. VeraSign refuses to do so. VeraSign has
not violate the ADA because the requested accommodation is an undue hardship on the employer
Hostile-environment harassment
occurs when "the 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."
Disparate-impact discrimination (unintentional)
occurs when protected group of people is adversely affected by an employer's practices, procedures, or tests, even though they do not appear to be discriminatory.
Carl tells Jenny that he will give her a raise if she agrees to have a romantic relationship with him. In legal terms, this is known as
quid pro quo harassment
Wally is blind and would like to work for Dairy Times writing articles on the dairy industry. Wally uses voice-recognition software that allows him to dictate articles to his computer. His computer is specially designed for visually impaired individuals. Dairy Times interviews Wally but offers the job to a sighted person instead. Dairy Times may have violated
the American Disability Act (ADA)
Employment discrimination
treating employees or job applicants unequally on the basis of race, color, national origin, religion, gender, age, or disability.
Kurt is 52 years old and has worked for a company covered by the Age Discrimination in Employment Act (ADEA) of 1967. He wants to bring a claim of age discrimination against his employer because he was replaced by a younger, lower-paid worker. To make out a prima facie case of age discrimination, Kurt does not have to establish that he
was replaced by someone who was below the age of 40.
Rheingold Supply has a seniority system by which employees who have worked the longest are first in line for promotions and last to be laid off. As a result, most of the senior managers at Rheingold Supply are men. If Jane files a claim of illegal discrimination, Rheingold Supply
will have legitimate defense because Rheingold Supply has a seniority system in place.
Discrimination based on Disability
The American with Disabilities Act (ADA) prohibits disability-based discrimination in workplaces with 15 plus employees. ADA requires that employers reasonably accommodate the needs of persons with disabilities unless suffer from undue hardship.