BLAW 3550 Part 2

"Gender-Plus" Discrimination

"Gender-plus" discrimination: Employment discrimination based on gender and some other factor such as marital status or children. Males are not subject to the same limitations. Case: Phillips v. Martin Marietta Corp. •Employer had a policy of not hiring women with preschool-aged children. •Court has not permitted B F O Q s to be used in such ways to discriminate based on gender since this case.

Case: Phillips v. Martin Marietta Corp

"I cannot agree with the Court's indication that a 'bona fide occupational qualification reasonably necessary to the normal operation of' Martin Marietta's business could be established by a showing that some women, even the vast majority, with pre-school-age children have family responsibilities that interfere with job performance and that men do not usually have such responsibilities. Certainly, an employer can require that all of his employees, both men and women, meet minimum performance standards, and he can try to ensure compliance by requiring parents, both mothers and fathers, to provide for the care of their children so that job performance is not interfered with. But the Court suggests that it would not require such uniform standards. I fear that, in this case, where the issue is not squarely before us, the Court has fallen into the trap of assuming that the Act permits ancient canards about the proper role of women to be a basis for discrimination. Congress, however, sought just the opposite result." -- If you ever needed a demonstration of why diversity is important, here it is. Marshall was the only minority Justice.

Statutory Structure of the A D A •Hostile work environment: Work environment in which harassment of an employee exists to such an extent that a reasonable employee would dread or fear going to work. •Employees can allege a pattern or practice of discrimination.

A D A: Prima Facie Case for Disability Discrimination An employee may be able to claim discrimination on the basis of disability if the employee can prove: •She or he is disabled. •She or he is otherwise qualified for the position. •Whether an accommodation is required and if the accommodation is reasonable. •She or he suffered an adverse employment decision such as a termination or demotion.

Distinctions between A D E A and Title VII 1

A D E A is more lenient than Title VII regarding the latitude afforded employers' reasons for adverse employment decisions. A D E A allows an employer to rebut a prima facie case of age discrimination. •Employer needs to identify any "reasonable factor other than age" that motivated the decision. Employee is not barred from pursuing a claim simply because the employer treated another older worker better. A D E A only protects employees over 40 from discrimination. •No protection from "reverse" discrimination, which Title VII gives. •Addresses discrimination in the provision of benefits. •Holds employers to an equal-benefit/equal-cost rule. •Has specific record-keeping provisions for employers to ensure appropriate and adequate information exists as to age-related hiring practices.

E E O C's E-RACE Initiative

According to a 2005 Gallup poll, the percentage of incidents of discrimination witnessed or experienced was: •31 percent by Asian-Americans. •26 percent by African-Americans. •Most frequently filed claims with the E E O C are issues related to race. Color discrimination claims are on the rise.

Chapter 12Age Discrimination

Age Discrimination Context 1 America is a culture in which youth is valued. General perception in the American culture. •With age comes decreasing interest, lack of innovation and imagination, and a lessening of the quality of the person. Information technology industry in particular faces challenges to its ageist culture. •Examples: Zuckerberg's speech to Stanford University audience and Google settlement with 54 year old former Google executive Brian Reid. Federal Reserve Bank of San Francisco research findings based on evidence from over 40,000 job applications. •Age discrimination was present in hiring against workers, particularly against older women. •44.6 percent of unemployed workers over 55 years old had been unemployed for 27 weeks or longer. From 19 92 to 2002, the portion of the workforce that was 55 and older grew from 11.8 percent to 14.3 percent. Some employers feel that older employees may be more expensive to retain because they have greater experience and seniority. Research suggests experience may be an under-valued asset. Generalizations constitute wrongful discrimination against older employees. •Individualized conclusions should be considered.

Regulation: Age Discrimination in Employment Act (A D E A)

Age Discrimination in Employment Act •Prohibits discrimination in employment on the basis of age. •Applies to individuals who are at least 40 years old. •Individuals who are not yet 40 years old are not protected by the act and may be discriminated against on the basis of their age. There is no longer an upper age limit for employees covered by the A D E A.

Section 503 of the Vocational Rehabilitation Act •Applies to the government and any firm that does business with the government. •Section 504: Prohibits discrimination against otherwise qualified individuals with disabilities by any program or activity receiving federal assistance. •Sections 503: Requires affirmative action on the part of federal contractors and agencies to recruit, hire, and train disabled workers.

Americans with Disabilities Act (A D A) 1 •Extends Rehabilitation Act protection to employees in the private sector, with few modifications. •Applies to all employers with at least 15 employees. •Protections extend to private, state, and local government employees. •Success rates of disabled employees who sued their employers under the A D A have been generally low. •Congress passed the A D A Amendments Act (A D A A A) in 2008 •Mandates that the A D A be broadly rather than narrowly interpreted. •Opened the door for new claims of discrimination based on less severe and even temporary disabilities.

This Is Not Your Parent's Religious Discrimination 1

As a nation of immigrants, the United States has always had a diversity of religions among its people. Pilgrims broke away from Great Britain and its Church of England because they wanted: •Right to practice religion freely. •Not be required to blindly accept the government's state-imposed religious beliefs. Title VII prohibits discrimination in employment based on religion. New comprehensive directive on religious discrimination for the Equal Employment Opportunity Commission (E E O C) Compliance Manual was issued in 2008. Noted that: •Claims of religious discrimination had doubled between 19 92 and 2007. •As religious pluralism has increased, questions about religious discrimination have increased. Federal and state constitutional guarantees of due process, equal protection, and freedom of religion also provide protection for federal, state, and local government employees. Title VII is the only legislation specifically prohibiting religious discrimination in employment. •Gives consideration to constitutional issues where necessary. Religious organizations are largely exempt from the prohibitions in Title VII. Section 703(e)(1) of Title VII. •Religion is recognized as a basis for a Bona Fide Occupational Qualification (B F O Q) reasonably necessary to the normal operation of that particular business or enterprise. Two Key Private Sector Concepts: •Duty to reasonably accommodate: Employer's Title VII duty to try to find a way to avoid conflict between workplace policies and an employee's religious practices or beliefs. •Undue hardship: Burden imposed on an employer, by accommodating an employee's religious conflict too onerous for the employer to bear.

Employee's Prima Facie Case: Disparate Treatment 1 Two types of discrimination exist under the A D E A: •Disparate treatment. •Disparate impact. Four elements to persuade the court about a claim for age discrimination. •Employee is a member of the protected class. •Must show that she or he is 40 years old or older. •Adverse employment action. •May include a decision not to hire the applicant or to terminate the employee. •Qualified for the position: Able to meet the employer's legitimate job requirements. •Dissimilar Treatment. •Others not in the protected class were treated more favorably.

Burden shifting prior to the summer of 2009. •Once evidence of discrimination was presented, burden of proof shifted to the employer to present a legitimate nondiscriminatory reason (L N D R) for its actions. •Employer in a mixed-motives case has always been given the opportunity to establish legitimate non-discriminatory motivation. •Age discrimination cases under the A D E A require proof that age was the "but for" cause of the adverse employment action.

A Word About Color

Color has been a divisive issue for as long as African-Americans have been in the United States. •One of the five categories included in Title VII as a prohibited basis for discrimination. •Color discrimination can exist among people of the same race.

Retaliation and Employee Privacy On reporting the sexual harassment, the alleged harasser must be told of the complaint for the employer to effectively address it. •Retaliation will not be tolerated. •Law has separate retaliation provisions.

Damages and Jury Trials Civil Rights Act of 19 91. Employees suing for sexual harassment can: •Ask for up to $300,000 in compensatory or punitive damages and unlimited medical damages. •Request a jury trial.

Reductions in Force (R I F s) 1 Cases: •Schuster v. Lucent Technologies, Inc. •Issue of age discrimination in the face of economic duress. •Hazen Paper Co. v. Biggins. •Metz v. Transit Mix. •7th Circuit Court noted that salary is often a direct function of seniority. •Death of a Salesman analogy: Older employees need protection as their skills decline. In the event of an R I F, age discrimination may be proven where an employer: •Refuses to allow the discharged (or demoted) employee to bump others with less seniority. •Hires younger workers when the jobs become available after the employee was discharged (or demoted) at the prior salary of the older worker. Section 4(a)(3) of the A D E A •"unlawful for any employer . . . to reduce the wage rate of any employee in order to comply with this Act."

Defenses Based on Benefit Plans and Seniority Systems A D E A specifically excludes bona fide retirement plans that distinguish based on age but are "not a subterfuge to evade the purpose of [the] Act." Bona fide voluntary retirement options must be truly voluntary. •Reasonable person would not feel compelled to retire under similar circumstances.

Equal Pay and Comparable Worth 1

Despite the Equal Pay Act (E P A), women earn on average 78.3 cents for every dollar earned by men. •Women's salaries may be equal by the year 2050. The Equal Pay Act overlaps with Title VII's general prohibition against discrimination in employment on the basis of gender. •E P A concerns the practical content of the job, not title or description. Title VII's Bennett Amendment •Exceptions permitted by the E P A (jobs compared in a Title VII unequal pay action need not be substantially equal). Comparable worth: Title VII action for pay discrimination based on gender. •Jobs held mostly by women are compared with comparable jobs held mostly by men. •Pay is compared to determine if there is gender discrimination.

Otherwise Qualified •Able to perform the essential requirements of his or her position. •An employer may not consider the possibility that employee or applicant will become disabled or unqualified for the position in the future. •If the applicant or employee is qualified at the time the adverse employment action is taken, the employer has violated the acts.

Direct Threat 1 Determination of whether an individual is "otherwise qualified" should be based on the following factors: •Nature of the risk (how the disease is transmitted). •Duration of the risk (how long the carrier is infectious). •Severity of the risk (potential harm to third parties). •Probability that the disease will be transmitted and will cause varying degrees of harm. •Level of risk the disabled employee poses to herself or to others is crucial in determining if an applicant is qualified. •Employers need to consider whether continued work will pose a direct threat to the employee. •Direct threat issues •H I V/A I D S, P T S D, hepatitis C, and diabetes. •Scenario 1.

Recognizing Gender Discrimination

Does a facially neutral policy exclude members of a particular gender from the workplace or some workplace benefit? Case: Dothard v. Rawlinson. •Do height and weight requirements statistically exclude certain groups? •Do these requirements directly correlate to ability to do the job? •Are there better, less discriminatory requirements?

Does it Really Exist? 1

E E O C stated: "Sex discrimination against males and females alike continues to be a problem in the 21st century workplace" •Majority of E E O C gender claims are filed by women. Merrill Lynch - First time a Wall Street firm was found to have engaged in systematic gender discrimination. Intersectionality: Experiencing more than one type of discrimination at a time. •E.g., being black and female. In 2007, the E E O C issued "family responsibility discrimination" (F R D) •Women are more likely to suffer adverse employment actions taken against them because of their caregiving responsibilities. Focus of E E O C claims has shifted from hiring discrimination to on-the-job issues. •Equal pay, promotions, harassment, pregnancy leave, lactation policies, caregiver responsibilities, and domestic violence. Statistical evidence of gender disparity. •Women make up 46.8 percent of the workforce, but 57 percent of women participate in the labor force. •Women have been earning more degrees than men. •U.S. Census Bureau found that the gender-based wage gap is present in every profession. •A 2011 White House Commission on Women and Girls report indicated that women earn 75 percent as much as men at all levels of educational attainment. In Fortune 1000 industrial and Fortune 500 service firms, 97 percent of top managers are white males. Prior to the 19 64 Civil Rights Act, it was common for states to have laws that limited or prohibited women from working at certain jobs. •Claimed that such laws were for the protection of women. •Gender was not originally a part of the Civil Rights Act.

A D E A Remedies Equitable relief: Relief that is not in the form of money damages. •Reinstatement, promotions, and injunctions. •Compensation for pain and suffering or emotional distress is not available under the A D E A. •Not granted if adequate money damages (back pay or front pay) have been given. Liquidated damages: Predetermined amount of damages, equal to the unpaid wage liability.

Employee Retirement Income Security Act (E R I S A) Regulates private employee benefit plans, including retirement plan provisions and other benefits. Protects employees from wrongful denial of all types of benefits. •No denial based on employee age, as long as she or he is at least 21 years of age and is a full-time employee with at least one year of service.

Employee's Response: Proof of Pretext Where there is direct evidence of discrimination, proof of pretext is not required. Showing pretext: •Offered reasons for the adverse employment action have no basis in fact. •Offered reasons did not actually motivate the adverse employment action. •Offered reasons are insufficient to motivate the adverse action taken.

Employee's A D E A Prima Facie Case: Hostile Environment Based on Age 1 Recognized by some circuit courts. Prima facie case for hostile environment under the act: •Employer is 40 years old or older. •Employee was harassed, through words or actions, based on age. •Harassment had the effect of unreasonable interference with work performance. •Created an objectively intimidating, hostile, or offensive work environment.

State Law Claims 1 State laws on age discrimination varies widely. •Alabama and Mississippi have no age discrimination laws. •Employees in those states are limited to the remedies provided by the A D E A. •Other states have laws that protect against age discrimination. •Some of these state laws track the A D E A. •Others expand the protections for age-based discrimination. Greater protection may provide for the following: •State age discrimination laws apply to a wider range of employers. •State age discrimination laws sometimes allow a wider range of damages. •States often provide longer filing periods. No state is permitted to extend the protection to someone younger than 40.

Employee's Options 1 Employee may file a complaint using the employer's internal grievance procedures. Legal options. •File a complaint with the federal Equal Employment Opportunity Commission (E E O C). •File a complaint with the state equivalent of the E E O C (if one exists). •File a lawsuit in federal court under the A D E A. •File a lawsuit in state court under state age discrimination laws. Deadline for filing a complaint with the E E O C. •180 days from when the discrimination occurred. •Extended to 300 days if the state has age discrimination laws and an administrative agency to oversee age discrimination complaints. Upon receiving the complaint, E E O C could: •Dismiss the complaint if it believes that the charges have no merit. •Investigate the charges. •Issues a right-to-sue letter.

Employee's Prima Facie Case: Disparate Impact Reasonable factors other than age (R F O A) •Defense to a prima facie claim of age discrimination, offered by employers. •May include any requirement that does not have an adverse impact on older workers, as well as those factors that do adversely affect this protected class but are shown to be job-related. NO RFOA defense in title VII Firm may opt to reduce its workforce based in part on salary amounts in order to have the greatest impact. •Discharges should be made on the basis of an objective standard. A D E A does not prohibit termination of protected employees for budgetary reasons. •Such terminations constitute impermissible discrimination when the economic reasons given serve merely to obscure age discrimination.

Employee's Prima Facie Case: Disparate Impact - What Constitutes an R F O A? E E O C lists five considerations for assessing reasonableness of an R F O A. •Extent to which: •Factor is related to the employer's stated business purpose. •Factor was well defined and applied fairly and accurately. •Employer limited supervisors' subjective discretion. •Employer assessed the effect of the employment practice on older workers. •Degree of the harm to individuals within the protected age group.

Requests for Accommodation and Employer Reponses: Process 1 E E O C Enforcement Guidance provides assistance to employers to help the E E O C's and the courts' perceptions and expectations about the employment of disabled individuals •Clarifies: •How a disabled individual can request reasonable accommodations. •How employers can reasonably accommodate such requests. •Reasonable accommodation is an interactive process. •Employers should be promptly receptive and responsive to disability situations.

Employee's Responsibility for "Interactive Process" 1 Identification and Request for Reasonable Accommodation •Once an employee learns that she or he will need some form of accommodation in order to perform the essential functions of her or his position, the burden is on the employee to make a request for the accommodation. Interaction •Meet with the worker. •Obtain as much information as possible about the condition. •Discuss alternatives. •Consider accommodations. •Document the process.

Burden Shifting No More: Gross Case: Gross v. F B L Financial Services. Inc. •No burden shifting occurs in A D E A cases: plaintiff must prove age was the "but-for" factor. •Mixed-motives age discrimination claims do not exist under the A D E A in disparate treatment cases. •Employee could recover only if the employment action would not have taken place but for age discrimination.

Employer Defenses Bona Fide Occupational Qualification (B F O Q). •Age is one of the most consistently applied B F O Q s. •E E O C guidelines for employers in A D E A cases: •The age limit is reasonably necessary to the essence of the employer's business. •All or substantially all of the individuals over that age are unable to perform the job's requirements adequately. •Some of the individuals over the age possess a disqualifying trait that cannot be ascertained except by reference to age. •Case: Western Airlines, Inc. v. Criswell.

Religious Conflicts - Process Employer considerations. Make sure the basis for conflict is a religious one. Attempt a good-faith accommodation of the religious conflict. Understand the limit of employer duty. •If the employer has tried everything available that does not present an undue hardship, he or she has fulfilled their Title VII obligation and there is no liability. The right to be free of religious discrimination is not absolute.

Employer's Duty to Reasonably Accommodate The duty to accommodate depends on the circumstances and will vary from situation to situation. Employer relieved of liability if: •Employer reasonably accommodated or attempted to accommodate the employee. •If an accommodation cannot be found, the employer made a good-faith attempt at an accommodation rather than simply dismissing the conflict.

Gender Identity Discrimination 1 Definition according to the Human Rights Campaign. •Transgender encompasses cross-dressers, intersexed people, transsexuals, and people who live substantial portions of their lives as other than their birth gender. Gender dysphoria. •Medical condition recognized by the American Medical Association. •Condition of feeling like one's mind is one gender and body is the opposite. Gender identity was traditionally not a protected category under Title VII for individuals who had gender reassignment surgery. Scenario 2. •Case: Ulane v. Eastern Airlines Inc. Example of how an employer can best provide protection against liability for discrimination. •Case: Jane Doe v. Boeing Company.

Employment Benefits Benefits that other employees take for granted are major hurdles for the L G B T community. Growing number of states allow same-sex marriages per statute or court ruling. •Spousal benefits are available for L G B employees.

Employee's Duty to Cooperate in Accommodation Under Title VII, employer is not required to resolve the conflict in the way the employee wants. Accommodation need not be the most reasonable or the one the employee wants. •Case: Vargas v. Sears, Roebuck & Company.

Factors Determining Reasonableness of Accommodation •Whether the employer made an attempt at accommodation. •Size of the employer's workforce. •Type of job in which the conflict is present. •Employer's checking with other employees to see if anyone was willing to assist in the accommodation. •Financial cost of accommodation. •Administrative aspects of accommodation.

Fetal Protection Policies

Fetal protection policies: Policies an employer institutes to protect the fetus or the reproductive capacity of employees. Limit or prohibit employees from performing certain jobs or working in certain areas. Many times these policies only consider females. •E.g., UAW v. Johnson Controls.

Gender Stereotyping

Gender stereotypes: The assumption that most or all members of a particular gender must act a certain way. Workplace decisions based on stereotypes are prohibited by Title VII. Case: Price Waterhouse v. Hopkins. •Would she have qualified if she had met the stereotype? •Even supporters considered her a "lady partner" candidate.

Additional Responsibilities of Employers: Workers' Compensation "No fault" liability. •Remedial history: purpose of workers' compensation •Employee's benefits are certain if the workers' compensation requirements are met. •Employer gains freedom from lawsuits for workplace injuries and the certainty of how much such injuries will cost.

Genetic Testing Analysis of chromosomes, genes or gene products to determine whether a mutation is present that is causing or will cause a certain disease or condition Genetic Information Nondiscrimination Act (G I N A) prohibits employers with 15 or more employees from: •Requesting genetic testing. •Considering someone's genetic background in taking any employment action.

Out of the Closet 1 35 percent of L G B T employees had to hide their sexual orientation or gender identity at work. The resistance at Stonewall Inn in 19 69. •Public riots protested the police raid at the gay bar. •Gay Pride Month celebrations have taken place every June since the incident. Employment Nondiscrimination Act (E N D A). •Proposed but has yet to pass. •Extends Title VII's reach to include discrimination on the basis of sexual orientation or gender identity. Affinity groups - L G B T employee support groups. Multiple corporations support of gay and lesbian employees through: •Gay Pride events. •Domestic partnership benefits. •Every state in the union has some form of job discrimination protection for L G B T employees. •Based on the vast collection of laws, ordinances, and employer policies, giving careful thought to policy and actions involving L G B T employees is critical.

Historical Issues 1 •The impact of AIDS in society and in the workplace. •The military's "don't ask, don't tell" policy. •President Bill Clinton voices support for gays (19 92). •The 19 93 March on Washington for Lesbians, Gays, and Bisexuals. •Clinton's support for the Employment Nondiscrimination Act [E N D A]. •Clinton's appointment of over 150 gays and lesbians in his administration. •Striking down Colorado's attempted constitutional ban on protection for gays and lesbians. •U.S. Supreme Court issued its Obergefell decision upholding same-sex marriage in 2015.

Background of Racial Discrimination in the United States 1

History and its present-day effects account for much of the race discrimination seen today. Slavery lasted for over 200 years until after the Civil War ended in 18 65. Jim Crow laws were created after the Reconstruction. •Legalized and codified racial discrimination. •Slave Codes were simply renamed "Black Codes" and used virtually as if slavery had never ended. •Segregated public schools were outlawed by the U.S. Supreme Court in Brown v. Board of Education in 19 54. •Civil Rights Acts of 19 64. •Voting Rights Act of 19 65.

Logistical Considerations

Issue concerning breast-feeding or expressing milk at work. Employers may not forgo hiring those of a certain gender because of logistical issues unless it involves an unreasonable financial burden. Examples: •Female sports reporters going into male athletes' locker rooms. •Female firefighters sleeping at a fire station. •Lack of bathrooms at a construction site, case: Lynch v. Freeman.

Reasonable Accommodation and the Contingent Worker Both the staffing firm and the prospective employer may be responsible for reasonable accommodation. Tax incentives to eligible small businesses. •Provide workplace access. •Provide deductions for removing architectural or transportation barriers. •Assist in the hiring of "vocational rehabilitation referrals."

Legal Process: Burden of Proof Once an employee meets the requirements for establishing a prima facie case of disability discrimination, the employer has the opportunity to establish a legitimate non-discriminatory reason (L N D R) for the employment action. •Once the employer meets that requirement, the analysis shifts back to the employee. •Employee has the right to establish that the non-discriminatory reason was merely a pretext for discrimination.

Disability 1 •Physical or mental impairment that substantially limits one or more of the major life activities of an individual •Record of such impairment ("record of"). •When an employer takes an action prohibited by the A D A because of an actual or perceived impairment that is not both transitory and minor ("regarded as"). •Definition does not contain a definitive list of impairments that are considered to be disabilities •Some states have laws that mandate that certain conditions be considered disabilities. •Courts are directed to reach determinations on a case-by-case basis. Being regarded as having an impairment •Someone who is not disabled can still be covered under the A D A as long as she or he is perceived by the employer as being disabled. To establish a prima facie case of discrimination under the A D A A A, plaintiffs must show that they: •Are disabled as defined under the A D A A A. •Are qualified, with or without reasonable accommodation by the employer, to perform the essential functions of the job. •Were discriminated against because of their disability.

Major Life Activity 1 A D A A A provided a nonexhaustive list of examples of major life activities. •Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. •Extended the definition to include bodily functions, immune system functions, reproductive functions, respiratory and circulatory functions, normal cell growth, and bladder and bowel functions. •E E O C includes temporary impairments in its definition of impairment. •Disabilities that were later added to the list. •Depression, carpal tunnel syndrome, HIV-positive status, irritable bowel syndrome, and a back injury. •Individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. •Multiple impairments that together substantially restrict a major life activity may also constitute a disability. •Cases: Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.

Union Activity and Religious Discrimination 1 Unions are also under a duty to reasonably accommodate religious conflicts. Conflicts with some religious beliefs emerge regarding: •Union membership. •Payment of union dues. •Engagement in concerted activity such as picketing and striking. Employees also have objected to the payment of union dues as violating: •First Amendment right to freedom of religion. •Title VII's prohibition against religious discrimination. It violates Title VII for an employer to discharge an employee for refusal to join the union because of his or her religious beliefs. Case: Tooley v. Martin-Marietta Corp.

Management Tips 1 •Take all employee notices of religious conflicts seriously. •Once an employee puts the employer on notice of a religious conflict, immediately try to find ways to avoid the conflict. •Ask the employee with the conflict for suggestions on avoiding the conflict. •Ask other employees if they can be of assistance in alleviating the conflict. •Keep workplace religious comments and criticisms to a minimum. •Make sure all employees understand that they are not to discriminate in any way against employees on the basis of religion. •Once an employee expresses conflict based on religion, do not challenge the employee's religious beliefs, though it is permissible to make sure of the conflict. Make sure undue hardship actually exists if it is claimed. See if it is more appropriate to use more inclusive language such as holiday to cover employees who do not celebrate a certain religious holiday. •Revisit the issue of whether all employees are being fairly covered by such policies and events.

Employer Defenses 1 Burden to prove disability discrimination always remains with the employee. Disparate treatment case. •One of the employer's defenses is to establish that the employment action was taken for a reason other than disability discrimination. Two additional defenses for employers in disability discrimination cases: •Employer did not receive notice from the employee of a need to accommodate the disability. •Proposed accommodation is unreasonable because it places an undue hardship or burden on the employer. Business necessity defense requires the employer to demonstrate all of the following: •Qualification standard is job related. •Standard is consistent with business necessity. •Performance cannot be accomplished by reasonable accommodation.

Mental or Emotional Impairments E E O C issued "Questions & Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act." •Addresses specific issues raised in connection with intellectual disabilities. E E O C defines intellectual impairment: •I Q below 70-75. •Significant limitations in adaptive skill areas. •Disability originated before the age of 18.

E E O C's National Origin Guidance

National origin discrimination is prohibited based on: •Employment Decisions. •Harassment. •Accent discrimination. •English fluency and English-only rules. Coverage of foreign nationals. •Discrimination against individuals employed in the United States is prohibited regardless of citizenship.

E E O C's Revised Race/National Origin Guidance

New forms of discrimination are emerging as workforce demographics evolve. Issue of race discrimination in America is multidimensional. •E E O C receives race and color discrimination charges alleging multiple or intersecting prohibited bases such as age, disability, gender, national origin, and religion. •Case: Alonzo v. Chase Manhattan Bank, N.A.

Present-day Race Issues

New racism - Idea that whites think everything is fair for everyone, so nothing need be done to ensure equal opportunity anymore. Study of intentional workplace discrimination released by Alfred and Ruth Blumrosen in 2002. •15 percent of African-Americans experience intentional workplace discrimination.

Bostock v. Clayton County 140 S. Ct 1791 •Three cases were joined for the Supreme Court's decision. In the 11th Circuit case, Bostock v. Clayton County, GA, Gerald Bostock had worked for Clayton County, GA as a child welfare advocate for ten years. Under his leadership the county had won national awards for its work. Bostock joined a gay recreational softball team. After disparaging remarks were allegedly made by influential community members about Bostock's sexual orientation and participation in the league, he was terminated for conduct "unbecoming" a county employee." In the Second Circuit case, Altitude Express, Inc., et al. v. Zarda, Zarda, a skydiving instructor, jokingly mentioned to a woman he was strapped to not to worry about him touching her because he was gay. He was fired a few days later. In the Sixth Circuit case, R. G. and G. R. Harris Funeral Homes v. EEOC, Aimee Stephens had been employed as a funeral director for six years when she wrote to her employer that she was transitioning from male to female (after four in therapy) and would be living and working full time as a female after returning from vacation. The employer told her it would not work out and terminated her before she left for vacation. Each of the employees sued, alleging unlawful termination in violation of the Civil Rights Act of 1964's prohibition on discrimination on the basis of gender. The Zarda and Harris courts permitted the claims to proceed. The Bostock court did not. Because of the split in the circuits, the US Supreme Court granted certiorari to decide the question of whether Title VII's prohibition on gender discrimination recognizes claims of discrimination based on being gay and/or transgender.

Prima Facie Case I.Member of the Protected Class II.Adverse Employment Action III.Causing Damages OPINION OF THE COURT •For the Majority, Justice Gorsuch: •In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids. •

Mandatory Retirements Mandatory retirement: Employee must retire upon reaching a specified age. •Deemed illegal by the 19 86 amendments to the A D E A, with few exceptions. •Limited to: •Retirement at age 65 or beyond for high-level executives who receive a company pension of $44,000 or more. •Police officers and firefighters.

Proving a Case of Age Discrimination 1 Disparate Treatment Step 1: Employee's prima facie case •The employee is in the protected class. •She or he was terminated or demoted. •Employee met employer's legitimate expectations. •Others not in the protected class were treated more favorably. Step 2: Employer defenses. •Bona fide occupational qualification. Step 3: Employee may evidence pretext for employer actions. Disparate Treatment Step 1: Employee's prima facie case •A facially neutral policy or rule is imposed by an employer. •Which has a different effect on an older group of workers. •No intent to discriminate is necessary. Step 2: Employer defenses. Reasonable factor other than age (R F O A). •Economic concerns. •Seniority.

Sexual Harassment in General Quid pro quo sexual harassment and Hostile environment sexual harassment. •Distinction between the two terms need not be rigid according to the U.S. Supreme Court. Most sexual harassment takes place between males and females. •Male as the harasser and the female as the harassee. •Gender of the harasser need not be male and the gender of the parties does not matter. •Males can be sexually harassed also.

Quid Pro Quo Sexual Harassment Quid pro quo sexual harassment: Harasser requests sexual activity from the harassee in exchange for workplace benefits. •More obvious type of sexual harassment and is not generally difficult to recognize.

Perspective Used to Determine Severity 1

Reasonable person standard: Viewing the harassing activity from the perspective of a reasonable person. •Harassing activity includes gender-specific sociological, cultural, and other factors. Reasonable victim standard: Viewing the harassing activity from the perspective of a reasonable person in society at large. •Generally tends to be the male view. E E O C issued a policy statement. •Required that the victim's perspective also must be considered so as not to perpetuate stereotypes. •Notion was labeled the "reasonable woman" or reasonable victim standard.

•Race is the first of the prohibited categories in Title VII. •Southern Poverty Law Center issued a report in February 2011 showing that the number of hate groups in the United States has risen to over 1,000. •E E O C's 2016 statistics still show that race discrimination claims account for 35.3 percent of total claims filed.

Recent Studies on Race Inequalities 1

Religion as a B F O Q Title VII permits religion to be a bona fide occupational qualification. •Must be reasonably necessary to the employer's particular normal business operations. Specifically permits educational institutions to employ those of a particular religion if they are owned in whole or in substantial part by a particular religion. Case: Pime v. Loyola University of Chicago.

Religious Harassment 1 One of the most active areas under religious discrimination lately. Under the guidelines set forth by President Clinton, federal employees: •Should be permitted to engage in private religious expression in personal work areas. •Should be permitted to engage in religious expression with fellow employees. •Are permitted to engage in religious expression directed at fellow employees. To avoid liability employer policies should: •Protect employees from those religious employees who attempt to proselytize others who do not wish to be approached about religious matters. •Protect employees with permissible religious practices who are given a hard time by those who believe differently. •Make sure that employees are given comparable opportunities to use workplace time and resources for religious practices.

Chapter 13 Disability Discrimination

Removing Old Barriers 1 •Workers with disabilities continue to face the frustration of physical and attitudinal employment barriers. •Approximately 53 million Americans (one in five people) have one or more physical or mental disabilities. •Research shows that disabled workers, when properly placed, can equal or even surpass able-bodied workers. •Employer should be "disability-blind" and evaluate each applicant on the basis of her or his competence.

Religious Conflicts: prima facie case

Requirements for a prima facie case. Employee holds a sincere religious belief that conflicts with an employment requirement. Employee has informed the employer of the conflict. Employee was discharged or disciplined for failing to comply with the conflicting employment requirement. •Case: Goldman v. Weinberger. Once prima facie case is established, the burden shifts to the employer to prove reasonable accommodation was offered.

"Same Actor" Defense •When the same "actor" both hires and fires a worker protected by the A D E A, there is a permissible inference that the employee's age was not a motivating factor in the decision. •Case: Lodis v. Corbis Holdings, Inc.

Retaliation A D E A prohibits retaliation in response to an age discrimination complaint filed. •Protects the person filing the complaint and any other employee who might have participated in the claim. Punitive damages. •Money over and above compensatory damages. •Imposed by a court to punish a defendant for willful acts and to act as a deterrent. •Designed to punish the employer. •Available for retaliation claims.

Sexual Orientation as a Basis for Adverse Employment Decisions E E O C announced that Title VII's gender category included discrimination on the basis of sexual orientation in 2015. Employer should not tolerate from any employee inappropriate workplace behavior. •Make the distinction between orientation as L G B T and activity that may be inappropriate. Employee may fit into more than one category. •Liability will ensue if one or more of the categories are protected under Title VII.

Same-Gender Sexual Harassment Important legal question: Can an employee sexually harassed by someone of the same gender bring an action under Title VII? • Case: Oncalev. Sundowner Offshore Services, Inc. Basis for the sexual harassment by someone of the same gender prohibits discrimination unless it was actually based on sexual orientation. •Scenario 3. •Case: Nichols v. Azteca Restaurant Enterprises, Inc.

What Is Religion? 1

Section 701, Title VII, section (j). Term "religion" includes all aspects of religious observance and practice, as well as belief. •Unless an employer demonstrates that he or she is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business. Key considerations for determining whether an employee's religion must be accommodated by an employer. Belief must be closely held by the employee. Takes the place of religion in the employee's life. •Atheism has been considered a "religion" for Title VII purposes. Employer's duty to accommodate. Attaches to the conflict itself, not to when the conflict arises. Applies to religious practices, not religious beliefs. •Accommodation should be to the extent that it does not present an undue hardship on the employer.

Severe and Pervasive Requirement

Severe and/or pervasive activity: Harassing activity that is more than an occasional act or is so serious that it is the basis for liability. •The more frequent or serious the occurrences, the more likely it is that the severe and/or pervasive requirement will be met.

Sexual orientation: Whom one is attracted to for personal and intimate relationships. Gender identity: How one identifies for male/female purposes. •Based on a combination of genetics and environment, including transgender.

Sexual orientation pushes a lot of buttons in society and the workplace. •It is an issue all across the world. •Vast implications for people's everyday lives.

Gender Stereotypes 1

Stereotypes impact how employees of a given gender are viewed in the workplace. Examples of gender stereotypes: •Women are better suited to repetitive, fine motor skill tasks. •Women are too unstable to handle jobs with a great deal of responsibility or high pressure. •Men make better employees because they are more aggressive. •Men do not do well at jobs requiring nurturing skills, such as day care, nursing, elder care, and the like. •When women marry they will get pregnant and leave their jobs. •When women are criticized at work, they will become angry or cry. •A married woman's pay is only extra family income.

Employer Liability for Sexual Harassment 1

Supervisor toward Employee (Tangible Employment Action). •Generally quid pro quo sexual harassment. •Employers are strictly liable for the tangible acts of their supervisors. •Presence of a paper trail, which gives employers a measure of control in monitoring for actions. Supervisor toward Employee (No Tangible Employment Action). •Employer is not strictly liable. •Ellerth/Farragher defense: Employer had a reasonable sexual harassment policy in place; harassed employee unreasonably failed to use it. Coworker harassment or third-party harassment of employee. •The harasser and harassee are on the same level. •Harasser is not employed by the employer (e.g., a client). •Employer is liable if the acts of harassment were known, yet no corrective action was taken. •Case: Farragher v. City of Boca Raton.

Major Religions of the World—Ranked by Number of Adherents Long Description

Ten overall divisions are made and as follows: Christianity represents 33% and is 2.1 billion (including Catholic, Protestant, Eastern Orthodox, Pentecostal, Anglican, Monophysite, AICs, Latter-day Saints, Evangelical, SDAs, Jehovah's Witnesses, Quakers, AOG, nominal, etc.). Islam represents 21% and 1.5 billion, and this category includes Shiite and Sunni. Nonreligious includes agnostic, atheist, secular humanist, plus people answering 'none' or no religious preference. Half of this group is "theistic" but nonreligious. It accounts for 16% and 1.1 billion. Hinduism makes up 14%, or 900 million. Primal-indigenous is 300 million and includes African Traditional/Diasporic) for 100 million, with overall segment making up 6%. Chinese traditional religion is 394 million and 6%. Buddhism is 376 million and represents 6%. Sikhism is 23 million and .36%. Judaism is .22% of the pie and 19 million. Last pie segment is Other.

Determining the Truth of Allegations

The E E O C's Policy Guidance on Harassment. •Inherent plausibility. •Demeanor. •Motive to falsify. •Corroboration. •Past record.

Pregnancy Discrimination

The Pregnancy Discrimination Act (P D A) Prohibits discrimination based on pregnancy, childbirth, or related medical conditions. •Followed Supreme Court's conclusion that discrimination on the basis of pregnancy was not gender discrimination under Title VII. •Two years later Congress passed the P D A, amending Title VII to expressly include pregnancy.

Recognizing Race Discrimination 1

The latest E E O C statistics for FY 2016 indicated: •Race remains one of the most frequent types of claim filed with the agency. •Many claims involve systemic race discrimination affecting hundreds of employees. •Often employers are held liable because they treated employees of a particular race differently without even realizing. Seemingly small or subtle cases of race discrimination. •Vaughn v. Edel, Scenario 2. •Bradley v. Pizzaco of Nebraska, Inc., d/b/a Domino's Pizza, Scenario 3. Unusual manifestation of racial discrimination covered by Title VII. •Case: Chandler v. Fast Lane, Inc.

Grooming Codes

Title VII does not prohibit an employer from using gender as a basis for reasonable grooming codes. •Employer discretion: grooming codes rarely affect opportunity. •Gender-based grooming policy that subjects only one gender to different conditions of employment would not be allowed.

Gender as a B F O Q 1

Title VII permits gender to be used as a bona fide occupational qualification under certain limited circumstances. E E O C guidelines for gender as a B F O Q are very strict. •Would be necessary for a sperm donor or a wet nurse. •Provide insight into how irrelevant the E E O C considers the matter of gender in the workplace to be.

General Considerations

Title VII was enacted primarily in response to discrimination against African-Americans in the country, but the act applies equally to all. Race discrimination can occur to any group and is equally prohibited under Title VII. •McDonald v. Santa Fe Transportation.

E E O C's Revised Race Guidance

Title VII's prohibition of race discrimination encompasses: •Ancestry. •Physical characteristics. •Race-linked illness. •Culture and perception. •Association. •Subgroup or "race plus." •"Reverse" race discrimination (against Caucasians).

Racial Harassment

To hold an employer liable for racial harassment, the employee must show that the harassment was: •Unwelcome. •Based on race. •So severe or pervasive that it altered the conditions of employment and created an abusive environment. •There is a basis for imposing liability on the employer.

Race: Putting It All Together

U.S. Department of Labor Glass Ceiling Studies in 19 91 and 19 95 found that: •"Glass ceiling" exists beyond which minorities rarely progress. •Monitoring for equal access and opportunity was almost never considered a corporate responsibility. •Neither employee appraisals nor total compensation systems were usually monitored. •If analyzed and monitored, race discrimination could be discovered and addressed before it progressed to litigation.

Introduction/Major Developments

U.S. Supreme Court did not hear its first sexual harassment case until 19 86. Anita Hill's 19 91 testimony against Clarence Thomas. •Affected workplace environment. •Led to increase in complaints filed with the Equal Employment Opportunity Commission (E E O C) after the hearings.

Difficulty Prohibiting Disability Discrimination

Unclear what constitutes a "disability" and disability discrimination Some employers deny a job to a disabled person if hiring that person will cause the employer to spend extra money Accommodations have to be made •Need to consider how much accommodation is too much accommodation and where to draw the line.

Factors in Undue Hardship 1 E E O C guidelines on factors determining undue hardship. •Nature of the employer's workplace. •Type of job needing accommodation. •Cost of the accommodation. •Willingness of other employees to assist in the accommodation. •Possibility of transfer of the employee and its effects. •What is done by similarly situated employers. •Number of employees available for accommodation. •Burden of accommodation on the union (if any).

Undue Hardship - Conclusion Courts find undue hardship if an employer must: •Violate the seniority provision of a valid collective bargaining agreement to pay out more than a "de minimis" cost to replace a worker who has religious conflicts. •Force other employees who do not wish to do so to trade places with the employee who has a religious conflict.

•Reasonable accommodation: Accommodation to the individual's disability that does not place an undue burden or hardship on the employer. •Removal of unnecessary restrictions or barriers. •Each case is determined by looking to the particular job responsibilities as they are impacted by the employee's or applicant's particular disability. •Inquiry should be "fact intensive and case specific." •An accommodation does not have to be the best possible solution. •A disabled employee is entitled to reassignment if he or she is qualified to fill a vacant position, even if he or she can no longer perform the essential functions of her or his own position. •Case: Huber v. Wal-Mart Stores, Inc. - Not a guarantee if it does not fulfill employer's legitimate non-discriminatory policy of hiring the most qualified candidate.

Undue Hardship 1 Concept of undue hardship includes any accommodation that would be: •Financial difficulty. •Unduly extensive, substantial, or disruptive. •Fundamentally altering the nature or operation of the business. Adverse employment action is taken based on fears relating to: •Future absences or higher insurance costs. •Undue hardship. •De minimis costs higher than what the employer should have to bear.

Hostile Environment Sexual Harassment Hostile environment sexual harassment. •Harasser creates an abusive, offensive, or intimidating environment for the harassee. •Offensive work environment to which one gender is subjected but not the other.

Unwelcome Activity Unwanted activity by the harasser is the basis of hostile environment sexual harassment actions. •Harasser's actions can be direct or indirect. •Evidence that the activity is unwelcome can also be direct or indirect. •Scenario 3.

Waivers under the Older Workers' Benefit Protection Act of 1990 Waiver: Intentional relinquishment of a known right. Older Workers' Benefit Protection Act (O W B P A) concerns the legality and enforceability of early retirement incentive programs and waivers of rights under the A D E A. •Prohibits age discrimination in the provision of employee benefits. •Requires that every waiver must be knowing and voluntary to be valid. Waiver may not bar the employee from filing a claim with the E E O C. If employee signs a defective waiver, the employee is not required to give back any benefits received under the waiver. •Case: Oubre v. Entergy Operations.

Use of Statistical Evidence Generally more useful in disparate impact cases. Skepticism relating to statistical evidence in age discrimination cases because of normal attrition in the workforce. Supreme Court guidelines. •Difference of more than two or three standard deviations variation can be considered suspect. •Context is crucial - Statistical evidence depends on all of the surrounding facts and circumstances.

Is It a Big Deal? 1 Study by the U.S. Merit Systems Protection Board in 19 87. •42 percent of federal employees have reported sexual harassment. Survey by Working Woman magazine of 160 of the Fortune 500 companies. •Nearly 40 percent had received at least one sexual harassment complaint in the previous 12 months. New York Times poll. •4 out of every 10 women have experienced sexual harassment. National Law Journal. •60 percent of female attorneys have experienced sexual harassment. Parade Magazine poll. •70 percent of women serving in the military and 50 percent of the women who worked in congressional offices on Capitol Hill have been sexually harassed.

Where Do Sexual Harassment Considerations Leave the Employer? Consensual relationships are not forbidden under the law. Employees may date consistent with company policy. Becomes a problem when: •Activity directed toward an employee is unwelcome. •Terms or conditions different for one gender than are imposed.

Affirmative Action Plans (1)

§Affirmative action plan: Must be developed according to the rules set forth in the Code of Federal Regulations part 60-2 §http://www.dol.gov/dol/cfr/Title_41/Chapter_60.htm §Underrepresentation/Underutilization: Significantly fewer minorities or women in the workplace than relevant statistics indicate are available or their qualifications indicate they should be working at better jobs §Organizational profile: Staffing patterns showing organizational units; their relationship to each other; and gender, race, and ethnic composition §Job group analysis: Combines job titles with similar content, wage rates, and opportunities. §Availability: Minorities and women in a geographic area who are qualified for a particular job under consideration §Factors used to determine availability: §The percentage of minorities or women with requisite skills in the reasonable recruitment area §The percentage of minorities or women among those promotable, transferable, and trainable within the contractor's organization. §Placement goal: Percentage of women and/or minorities to be hired to correct underrepresentation, based on availability in the geographic area §Quotas are expressly forbidden §Action-oriented programs must be more than the contractor's business as usual. §OFCCP audits: Contractors must show that they have made good-faith efforts to remove any identified barriers to equal employment opportunity, expand employment opportunities, and produce measurable results. §Corporate management compliance evaluations: Designed to determine whether employees are encountering artificial barriers to advancement to mid- and senior-level corporate management §OFCCP conducts an Equal Opportunity Survey every year

Voluntary Affirmative Action (1)

§Employers or unions can adopt an affirmative action plan on their own, compelled by neither the E.O. nor the court §Proactive measure to avoid future discrimination claims §Scenario 2 §Based on case 2, Johnson v. Transportation Agency, plans had to be carefully designed so that they: §Did not unnecessarily trammel rights of majority workers §Did not set aside positions for women or minorities as quotas to be met §Were temporary §Did not unsettle legitimate, firmly rooted expectation of employees §Caused minimal intrusion into the legitimate, settled expectations of other employees

What Is Affirmative Action? (1)

§Intentional inclusion of women and minorities in the workplace based on a finding of their previous exclusion §Individuals with disabilities and veterans are also a part of affirmative action §Specific tactics an employer can use §Expanded outreach and recruitment to groups the employer has not generally made an effort to reach §Mentoring, management training, and development of traditionally excluded groups §Hiring, training, and other attempts to bring into the workplace groups that have traditionally been left out of the employment process

Affirmative Action and Veterans

§Jobs for Veterans Act of 2002 §Federal contractors must take affirmative action to employ and advance in employment qualified covered veterans

Judicial Affirmative Action (1)

§Judicial affirmative action: Affirmative action ordered by a court as a remedy for discrimination found by the court to have occurred, rather than arising from Executive Order 11246. §There are no specific requirements as to what form an affirmative action plan must take §Case: Regents of the University of California v. Bakke §Case: Local 28, Sheet Metal Workers v. EEOC §Scenario 1

E.O. 11246 Provisions (1)

§Require federal government contractors to remedy inadequate representation of women and minorities in their workplace §Enforced by the Office of Federal Contract Compliance Programs (OFCCP) in the Employment Standards Administration Office of the U.S. Department of Labor §All contractors/employers who contract with the federal government must abide by the executive order's nondiscrimination provision §Increased compliance requirements for those who have contracts of $10,000 or more

Reverse Discrimination (1)

§Reverse discrimination: Claim brought by a majority member who feels adversely affected by the use of an employer's affirmative action plan mistakenly considered as the flip side of affirmative action. §Reverse discrimination accounts for only about 3 percent of the charges filed with the EEOC §Case: Ricci vs. DeStefano, New Haven, Connecticut

How Do Affirmative Action Obligations Arise?

§There are three ways in which affirmative action obligations arise: §Through Executive Order 11246 §Judicially as a remedy for a finding of discrimination under Title Seven §Voluntary affirmative action established by an employer or union

Valuing Diversity/Multiculturalism

§United States Department of Labor's Workforce 2000 study was conducted by Hudson Institute Report §Found that an estimated 85% of the net growth in the workforce will be comprised of women and non-Europeans §Valuing diversity: Learning to accept and appreciate those who are different from the majority and value their contributions to the workplace

Penalties for Noncompliance (1)

§What is important to OFCCP? §The nature and extent of the contractor's good-faith affirmative action activities §The appropriateness of those activities to the problems the contractor has identified in the workplace. §The Department of Labor/OFCCP or the appropriate contracting agency can impose a number of penalties on the employer, including debarment (prohibits a federal contractor from further participation in government contracts) §The secretary of labor must make reasonable efforts to secure compliance by conference, conciliation, mediation, and persuasion before requesting the U.S. Attorney General to act or before canceling or surrendering a contract.

Employment Research Findings (1)

§Women and minorities still lag in terms of pay, jobs, and promotions §Research shows that people who hire tend to notice value more quickly in someone who looks like them §Almost 90 percent of jobs are filled through word-of-mouth, resulting in fewer minorities and women being able to take advantage of those networks §U.S. Department of Labor study: women and minorities have made more progress breaking through the glass ceiling at smaller companies §Federal Glass Ceiling Commission study: §White women made up close to half the workforce, but held only five percent of the senior-level jobs in corporations §African-Americans and other minorities account for less than three percent of top jobs

Gender Stereotypes 3

•A woman who changes jobs is being disloyal and unstable. •A woman should not have a job that requires her to have lunch or dinner meetings with men. •Women cannot have jobs that require travel or a good deal of time away from home.

Gender Discrimination in General 1

•Advertising. •Application questions. •Interview questions. •Requiring one gender to work different hours or job positions. •Disciplining. •Not considering legitimate differences between genders. Training Seniority systems Different wages and benefits Different terms or conditions of employment •Case: Wedow v. City of Kansas City, Missouri.

Management Tips 1

•Believe that race discrimination occurs and be willing to investigate it when it is alleged. •Make sure that there is a top-down message that the workplace will not tolerate race discrimination in any form. •Do not shy away from discussing race when the issue arises. •Provide a positive, nonthreatening, constructive forum for the discussion of racial issues. •Be aware of cultural differences that may be connected, at least in part, to race, when doing things at the workplace. •When an employee reports discrimination based on race, do not suggest that he or she must be mistaken. •Offer support groups if there is an expressed need. •Offer training in racial awareness and sensitivity. •Constantly monitor workplace hiring, termination, training, promotion, raises, and discipline to ensure that they are fair and even-handed.

Recent Studies on Race Inequalities 1

•Employers would rather hire a white man who had served time in prison than a black man who had not. •Applicants with ethnic names received fewer callbacks for jobs than the identical résumés with traditionally white names. •African-Americans who leave messages in response to ads often never receive return calls, while whites almost always do. •Networking within an organization and having a mentor do not give African-American men the same measurable benefits as whites. •Racial stereotypes and attitudes heavily influenced the labor market. •Majority of Americans say racism against blacks is widespread.

"Sexual" Requirement Explained

•Need not involve sex, requests for sexual activity, sexual comments, or other similar activity. •Antifemale animus: Negative feelings about women and/or their ability to perform jobs or functions, usually manifested by negative language and actions.

Evolving Definitions of Race

•With regard to Title VII, race has been almost exclusively about African-Americans and whites. •Discrimination against other groups considered primarily under the national origin category. •E E O C published a Revised Race/National Origin Guidance.