Chapter 20: Discrimination in Employment

quid pro quo

"this for that" happens when plaintiff is promised benefits or is threatened with loss if he or she does not give sexual favors to an employment supervisor -generally no defense

Equal does not mean

identical it means substantially equal

when are employers in violation

if they fail or refuse to hire based on discriminatory grounds NOT if they are hiring for a discriminatory purpose -unless someone is discrimnated against

County of Washington v. Gunther

illegal pay discrimination even when work is not substantially equal but rather comparative

Clarke County School District v. Breeden

ruled that "sexual harassment is actionable under Title VII only if it is so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment"

zarda case

second case to say sexual orientation is not included under sex discrimination DOJ said no and that congress needs to address it

Defense of business necessity

show there is no other availible alternative to make less disparate impact

one of the 1991 amendments

showing imbalance workforce based on race or gender is not enough to establish violation of title VII

altitude express inc vs zarda

sky diving instructor fired because he was gay

exception to that rule

sometimes speaking english is business necessity and this is a disparate impact defense

common national origin cases

speaking a native language and being discriminated against for it -ethnic background

discrimination on the basis of sex

supposedly protecting women when they dont all them to lift heavy objects, work the night or limit hours or required rest periods but this isnt allowed anymore

comparable worth

the concept that women and men should receive equal pay for jobs calling for comparable skill and responsibility -highly contraversial

Sexual Orientation Discrimination

title VII used to not prohibit discrimination based on sexual orientation but so recently they added that to title VII

1991 amendments: the EEOC must wait 60 days before it starts action

true

race normed employment tests

two different cutoff scores for different races or genders etc 1991 amendments prohibited this

sexual harassment

type of illegal sex discrimination in the workplace protects men too

employees cannot be required to pay union dues if they have religious obligations

union once violated this when they did not make any reasonable accomodations

physical harassment

unwanted massage too close to someone touching yourself rubbing up against someone 2/3 of women feel this from men

disparate-impact examples for race

using personnel tests that have no relation to job qualification denying employment to unwed mothers refusing to hire cause of credit score conviction records

when does BFOQ exist

when there is reasonable cause to believe that all or substantially all women would be able to perform safely and efficiently the duties of the job involved

when can employers legally discriminate based on religion, sex, or national origin

where there are BFOQs

where are cases rising in religion

with muslims and the example with the 4 muslims that got the worst positions and got called names

where is congress unwilling to make a BFOQ

with race and color

also you can file your own civil suit if EEOC refuses to hear it just make sure

you file with EEOC first because of the exhaustion of remedies clause and then you must wait 60 days to continue on with the claim after exhausting

vulgar lanuage

you say would never do this but it comes up in jokes all the time -sexual language

Meritor Savings Bank v. Vinson and harris vs forklift

- yes hostile work environment even when no economic loss occurs - illegal sexual harassment goes beyond causing injury

Defense to hostile work environment

-did not know or did not reasonably know of the problem -took reasonable care to prevent the problem correctly and promptly -attacker unreasonably tried to not follow the new procedures

employment practices that can be challenged

-testing and educational requirements -height and weight requirements -maintaining physical appearance -practicing affirmative action -seniority systems

BFOQs not permitted when

-women flight attendants required to be single -only women flight attendents -no female employees with young children -no females because of heavy lifting -no female newscasters because it sounds like gossip -women allowed to retire at 50 but men must wait until 55

Price Water House v. Hopkins

Pricewater refused to offer Anne Watkins as a partner for many reasons but then they added macho and non feminine in their as their description as she didnt fit the role -after this case, gender discrimination became a reason to sue

Employment Non-Discrimination Act

Proposed anti-discrimination laws regarding sexual orientation and gender identity that have been discussed and reintroduced but never passed because they couldn't increase power originally given to congress

when must an employee file charges of illegal discrimination with the EEOC

180 days after the notice of the unlawful pratice but if employee first filed with a state fair employment practices commission the law extends the time for filing with the EEOC to 300 days

people with white sounding naes are ___ more likely to get called for an initial interview than african american sounding names

50%

including sexual orientation

6-3 decision decided this past june or may 2020 and they ruled that sex includes sexual orientation

defense to disparate treatment

Bona Fide Occupational Qualification or BFOQ

bostock v clayton county georgia

Bostock joined a gay baseball team and was fired because of it the court ruled that title VII protects employees based on their sexual orientation

What created the Equal Employment Opportunity Commission? aka EEOC

Civil Rights Act of 1964

employers have to be so careful

not to use tools that illegally discriminate interviews can be biased without realizing -selecting males over females

sexual conduct

nude photos

Ricci vs. DeStefano

New Haven administered a test to firefighters to determine who qualified for promotion. The results showed that white and Hispanic candidates outperformed minority candidates -lose-lose: certify results and may be disparate impact or dont certify and whites say disparate treatment -Some minority firefighters argued that the test should be disregarded as discriminatory and that it had a disparate impact on minority. -Firefighters who passed the test argued that the city's failure to certify the test resulted in disparate-treatment discrimination -As a practical matter, New Haven believed that based on the arguments, it would be sued if it did or not certify the test results -they threw out results -the SC held that bc the exams were job related and consistent with business necessity, and there was no strong evidence of disparate impact violation, the city should have certified the test results -city tried to argue that disparate impact wouldve happened if they didnt certify but there was an 80% standard that they fell below -there was no evidence of disparate impact so city should not have disregarded the tests because since they did disregard them it was seen as disparate treatment

Obergefell v. Hodges

States obligated to recognize same-sex marriage from other states.

RG and GR Harris Funeral Homes inc vs EEOC

Stephens announced she was transgnder and she was fired zarda and stephens died befoe they knew they won their cases

EEOC (Equal Employment Opportunity Commission)

The Government agency that oversees discrimination in the workplace -5 members -appointed by the president and confirmed by the senate -adjudicating responsibilities -can file suit but first first must exhaust efforts to settle the claim

Thompson Vs. North American Stainless

Thompson and his fiance worked for the same employer, NAS. After Regalado filed a title 7 claim with the EEOC, NAS fired Thompson -Thompson sued but lower courts said he didnt have standing -The SC was asked to determine if firing him constitutes unlawful retaliation and, if so, whether he had a cause of action under title 7 -the court held that as an employee of NAS, Thompson was within the zone of interests of title 7 and the statute's anti retaliation provisions protection him. He has a standing to bring a claim against NAS. reasonable for person to not want to share bad activity if they knew their fiancee would be fired aka dissuade a person the employer did an unlawful action

principal law focusing on antidiscrimination

Title VII of the Civil Rights Act of 1964

discrimination is not the same thing as

a boss being a jerk to everyone so be careful

Equal Pay Act

administered by the EEOC prohibits an employer from discriminating between employees on the basis of gender by paying unequal wages for substantially the same work in similar working conditions and in the same establisment

BFOQ (Bona Fide Occupational Qualification)

all or substantially all members of the plaintiffs class cannot perform the duties of the job

1991 Amendments

allow the recovery of compensatory and punitive damages up to 300000 per person depending on the size of the employer -does not preempt states fair employment laws

in the past equality for all citizens had been

an ideal rather than a fact -slaves three fifths a person -women coulnt vote

Retaliation Claim

an individual asserts that she or he has suffered harm as a result of making a charge, testifying, or participating in a Title VII investigation or proceeding. -very subtle -great office to getting moved to the boiler room -never worked night shift but now u do

who can make a dsicrimination claim

anyone including witnesses

Title VII of the Civil Rights Act of 1964

apply to employers with 15+ employees, labor unions and certain other employers

employers have to make sure that the testing requirements and educational requirements

are job related and necessary for business

where are effects of inequality and discrimination most felt

area of job opportunity

must raise the number of employees question

at only trials because it cant be raised at appeas

1991 amendmens added

disparate impact statute that says employer cant use something that causes disparate impact based on race color sex religion and national origin

two types of discrimination

disparate treatment and disparate impact

tests can have a disparate impact

based on race color sex religion or national origin

Nonverbal Harassment

blocking the path staring at them unwanted gifts displaying sexual visual materiaal (playgirl pins, inappropriate drawn pictures, business trips and going to the room together)

defense to disparate impact

business necessity: practices or policies used are job related and consistent with a business necessity

religious rule

canot have sex outside of marriage and a single woman became pregnant so the school fired her but whats the equivalent for men? so this isnt allowed

Pregnancy Discrimination Act of 1978

cant discriminate against women who become pregnant or give birth -both married and unmarried women -no required leave of absense after work -sex discrimination applies equally to men as it does to women

when is discrimination is allowed when

comes from seniority system merit system or anything other than sex

types of employer actions where discrimination is prohibited

discharge refusal to hire compensation promotion terms, conditions, or privileges of employment

Title VII prohibits

discriminatory actiosn based on race or color that invlve recruiting hiring promotion discharge or application of the terms and conditions of employment

EEOC board has a lot more

diversity first woman general counsel

however court ruled once that

employee was rightfully fired when they refused to work on saturdays due to religion

Ledbetter v. Goodyear Tire & Rubber Co.

employees have a claim with each paycheck they receive but it must be filed withing 180 days after pay

to win a Title VII civil action case plaintiff must show

employer had an illegally discriminatory basis

retaliation is

employers taking employment actions against employees that would dissuade a reasonable person from engaging in such an act of protest

commercial treaties allow what

foreign companies to hire of their choice scotus ruled that japanese company cannot discriminate white employees because they came in fired all US managers to replace with japanese ones

what does equal payments include

fringe benefits such as stock options incentive bonuses and other benefits such as vacation, holiday pay, travel etc

congress is really tight when

handing out BFOQS and it must be a really good reason

draft card

have to get them stamped but its against some religious beliefs so you get someone else to stamp the draft cards -title VII allows them to preserve their employment status and the postal service did nothing wrong

EEOC has powers to

hold hearings, obtain evidence, examine witnesses, file a civil suit AFTER exhausting EEOC remedies

main goal of civil rights act of 1964

integration of african americans into mainstream society main idea: equal employment opportunities

discrimination based on customer preference

is not allowed

the discriminatory process is allowed if

it relates directly to job qualification

discrimination laws apply to

literally everyone

on basis of religion employers must

make reasonable accomodations to the needs of their employees as long as it doesnt cause undue hardship

(race) title VII protects

members of ALL races

hooters restaurant case

men denied jobs but women are entertainers so BFOQ rewarded but then hooters is required to fill host and bartenders for men -artistic performerss

height and weight requirement

must be applied equally to everyone and if they screen out a race or sex whatever they must show how its relevant to work

hostile work environment harassment

must be severe and pervassive enough to make working environment different

hostile work environment

offensive sexual comments, engage in suggestive touching, showing nude pitures or drawing sexual graffiti

when does title VII allow discrimination

on basis of religion sex or national origin and only when these considerations are bona fide occupational qualifications -actor vs actress - lutheran church hiring lutheran minister

defense to business necessity defense

other polices can be put in place and still qualify for business necessity and have less of a racial impact on the employees

Civil Rights Act of 1964

outlawed discrimination based on race, color, religion, sex, or national origin

Disparate Treatment

plaintiff must convince court that employer intentionally discriminated against the plaintiff

Disparate Impact

plaintiff must prove that the employers practices or policies had a discriminatory effect on a group protected by Title VII -"no problem with practice until you see the outcome"

if you have 15 employees or less

probably restrained by state law

state and local laws can

prohibit sexual orientation discrimination

cannot make this rule

prohibiting speaking spanish during work hours when all conversations do not need to be understand between employees

discrimination on basis of national origin

protects many ethnic groups

Two types of sexual harassment

quid pro quo and hostile work environment

title VII also prohibits (race)

racial insults all white or black crews better housing for diferent races higher bonuses

hostile work environment employer

reasonably knew or should have known of the problem

discrimination on the basis of religion

religious corps associations or societies can discriminate in their practices based on religion but not on the others however other organizations cannot discriminate based on color