Civil Rights Act - Title VII

Disparate treatment

A form of intentional discrimination in which an employee is hired, fired, denied a promotion, or the like, on the basis of membership in a protected class; a form of intentional discrimination

Bona Fide Occupational Qualification (BFOQ)

Allows an employer to discriminate in hiring on the basis of sex, religion, or national origin (but not race or color) when doing so is necessary for the performance of the job. Necessity must be based on actual qualifications, nto stereotypes about one group's abilities.

Sexual harassment

As stated in the Equal Employment Opportunity Commission (EEOC) guidelines and accepted by the US Supreme Court, sexual harassment is "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" that... 1. implicitly or explicitly makes submission a term or condition of employment 2. makes employment decisions related to the individual dependant on submission to or rejection of such conduct 3. or has the purpose or effect of creating an intimidating, hostile , or offensive work environment

Disparate-impact discrimination & burdens

Disparate impact: unintentional discrimination 1. Burden on plaintiff (employee): Establish statistically that a rule restricts employment for those in a protected class 2. Burden on defendant (employer): Articulate why the policy or practice is a business necessity 3. Burden on Plaintiff (employee): Show that the alleged business necessity is a mere pretext

Disparate-treatment discrimination & burdens

Disparate treatment: intentional discrimination 1. Burden on plaintiff (employee): Demonstrate prima facie case of discrimination 2. Burden on defendant (employer): Articulate a legitimate, non-discriminatory business reason for the action 3. Burden on Plaintiff (employee): Show that the reason the employer gives is a mere pretext

Disparate impact

Disparate-impact cases are sometimes called 'unintentional-discrimination' cases. Although it is very difficult to prove disparate treatment, it is even more difficult to prove disparate impact. Disparate-impact cases arise when a plaintiff attempts to establish that although an employer's policy or practice appears to apply to everyone equally, its actual effect is that it disproportionately limits employment opportunities for a protected class.

Sexual Harassment under Title VII

Harassment first developed in the context of discrimination based on sex, and it evolved to become applicable to other protected classes Two distinct forms of sexual harassment are recognized: 1. quid pro quo 2. hostile environment

Harassment of other protected classes under Title VII

Hostile-environment issues has also been used in cases of discrimination based on religion and race. Such activities are found by the court to constitute a hostile work environment.

Same-sex harassment

Initially, same-sex harassment was not covered under RCA. By 1997, the courts were split on the issue. This issue was resolved in 1998 in Oncale v. Sundowner Offshore Services, Inc. In this case, the Supreme Court concluded that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.

Hostile environment

Involves the creation of a hostile work environment

Quid pro quo

Occurs when a supervisor makes a sexual demand on someone and this demand is reasonable perceived as a term or condition of employment

Proving disparate treatment in employment under Title VII

Proving disparate-treatment in employment under Title VII is a three-step process: 1. Plaintiff (the employee) must demonstrate a prima facie case of discrimination 2. Defendant (the employer) must articulate a legitimate, nondiscriminatory business reason for the action 3. Plaintiff (the employee) must show that the reason given by the defendant (the employer) is a mere pretext

Disparate-impact discrimination cases

The plaintiff proves a case based on disparate impact by first establishing statistically that rule disproportionately restricts employment opportunities for a protected class. The burden of proof then shifts to the defendant, who can avoid liability by demonstrating that the practice or policy is a business necessity. The plaintiff, at this point, can still recover by proving either that the necessity was promulgated as a pretext for discrimination or that an alternative employment practice had less discriminatory effect and the employer failed to adopt such practice.

Title VII of the CRA of 1964

The CRA is divided into sections, called titles. Title VII deals with discrimination in employment. It prohibits employers from hiring, firing, or otherwise discriminating in terms and conditions of employment, and it prohibits segregating employees in a manner that would affect their employment opportunities on the basis of their race, color, religion, sex, or national origin.

Disparate-treatment Discrimination

To sue for disparate treatment under Title VII, the plaintiff must be a member of a protected class as listed in CRA. The employee must have been discriminated against on the basis of race, color, national origin, religion, or sex/gender. If the employee has been refused work, fired, denied a promotion, or the like, based on membership in a protected class, this is a form of intentional discrimination and qualifies the employee to sue for disparate-treatment discrimination.

Proving discrimination under Title VII

1. Disparate treatment 2. Disparate Impact

Seniority System defense

A bona fide seniority system is a legal defense under Title VII. Even though a seniority system, in which employees are given preferential treatment based on their length of service, may perpetuate past discrimination, such systems are considered bona fide and are thus not illegal if: 1. the system applies equally to all persons 2. the seniority units follow industry practices 3. the seniority system did not have its genesis in discrimination 4. the system is maintained free of any illegal discriminatory purpose.

Remedies under Title VII

A plaintiff may seek both equitable and legal remedies for violations of Title VII. A successful plaintiff may recover back pay for up to two years from the time of the discriminatory act. A plaintiff who was not hired for a job because of a Title VII violation may also receive remedial seniority dating back to the time when the plaintiff was discriminated against, compensatory damages, and (in some cases) punitive damages. An employer will not be held vicariously liable for punitive damages as long as it made good-faith efforts to comply with federal law.

Harassment by nonemployees

Employers may be held liable for harassment of their employees by nonemployees under very limited circumstances. If an employer knows that a customer repeatedly harasses an employee yet the employer does nothing to remedy the situation, the employer may be liable.

Pregnancy Discrimination Act

In 1987, Title VII was amended by the PDA. This law expanded the definition of discrimination based on gender to include discrimination based on pregnancy. "Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII." Under the act, temporary disability caused by pregnancy must be treated the same as any other temporary disability.

Damages under Title VII

In a disparate-treatment discrimination case, after all the evidence has been presented, the trier of fact must decide whether discrimination has occurred. The burden of proof in a civil case is preponderance of the evidence. If the jury finds in favor of the plaintiff-employee, damages must be assessed. If the jury finds in favor of the defendant-employer, the plaintiff receives nothing. Damages under Title VII include up to two years of back pay, compensatory damages, punitive damages, attorney fees, court costs, court orders (including reinstatement), and remedial seniority.

Procedure for filing a Claim under Title VII

Step 1: The aggrieved party must file a charge with the state Equal Opportunity Commission or the federal EEOC. A charge is a sworn statement that states the name of the charging party, the name(s) of the defendant(s), and the nature of the discriminatory act. Step 2: The EEOC must notify the alleged violator of the charge, and then investigates the matter to determine whether there is reasonable cause to believe that a violation has occurred. If it does, it attempts to eliminate the discriminatory practice through conciliation (by trying to negotiate a settlement between the two parties). If unstressful, the EEOC may file suit against the alleged discriminator in federal district court. If the EEOC decides not to sue, ti notifies the plaintiff of his right to file an action and issues the plaintiff a 'right-to-sue letter', which is not intended to be anything other than a statement that the plaintiff has followed the proper initial procedures and therefore may file a lawsuit. The plaintiff must have this letter to file a private action.

Defenses to Claims under Title VII

The three most important defenses available to defendants in Title VII cases are: 1. Bona Fide Occupational Qualification (BFOQ) 2. Merit defense 3. Seniority system defenses These defenses are raised by the defendant after the plaintiff has established a prima facie case of discrimination based on either disparate treatment or impact.

Merit defense

This defense is usually raised when hiring or promotion decisions are partially based on test scores. Professionally developed ability tests that are not designed, intended, or used to discriminate may be used. Although these tests may have an adverse impact on a class, as long as they are manifestly related to job performance, they do not violate the act. The Uniform Guidelines on Employee Selection Procedures (UGESP) resource has guided government agencies charged with enforcing civil rights, and they provide guidance to employers and other interested persons about when ability tests are valid and job-related. Under these guidelines, tests must be validated in accordance with standards established by the American Psychological Association.

Types of validation of ability tests

Three types of validation are acceptable: 1. Criterion-related validity: statistical relationship between test scores and objective criteria of job performance 2. Content validity: isolates some skill used on the job and directly tests that skill 3. Construct validity: a psychological trait needed to perform the job is measured