Chapter 18

After-Acquired Evidence of Employee Misconduct

(this is not a full defense, but can reduce the amount of damages awarded), -Evidence of employee misconduct discovered after a discrimination suit has been filed is not a defense to the alleged discrimination

Discrimination Based on Race, Color, and National Origin

1. Congress subject to rational basis - broad power to control immigration, naturalization, federal discrimination against aliens

Equal Pay Act

1963 law that required both men and women to receive equal pay for equal work but in this century women still happen in 2020 big issue prof wrote: women in medical professional and women pay less then men

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.the plaintiff must show that he or she was the following: 1)A member of the protected age group. 2)Qualified for the position from which he or she was discharged. 3)Discharged because of age discrimination.

Business Necessity

A defense to allegations of employment discrimination in which the employer demonstrates that an employment practice that discriminates against members of a protected class is related to job performance.

Disparate treatment discrimination

A form of employment discrimination that results when an employer intentionally discriminates against employees who are members of protected classes.

Protected Class

A group of persons protected by specific laws because of the group's defining characteristics. Under laws prohibiting employment discrimination, these characteristics include race, color, religion, national origin, gender, age, and disability. happen when is not haired or treated by workforce b/c of the above the list Title seven( civil right act) movement in the 1960 check you state law and check you federal legislation if you file: The Equal Employment Opportunity Commission (EEOC) monitors compliance with Title VII.

Seniority Systems

A system in which those who have worked longest for an employer are first in line for promotions, salary increases, and other benefits, and are last to be laid off if the workforce must be reduced.

Title VII of the Civil Rights Act of 1964

Compensation law that makes it an unlawful practice for an employer to discriminate against any individual with respect to hiring, compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, national origin, age, or disability

Sexual Harassment

Demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is sexually offensive that it creates a hostile working enviornment

Reverse Discrimination

Discrimination against a majority group such as whites or males.

The Age Discrimination in Employment Act. ADEA 1967

Discrimination based on Age-can only occur if the person is 40 or older. Plaintiff must show reasonable. protect by ADEA and federal and private sector

Disparate Impact Discrimination

Discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory effect.

Intentional Discrimination

Disparate Treatment Discrimination- Plaintiff must prove (when employer intentionally discraminates against employees who are members of protected classes. Ex:When you proposal not hiring someone b/c of race

Substance Abusers

Drug addiction is a disability under the ADA because drug addiction is a substantially limiting impairment

Harassment by Co-Workers/Nonemployees

Employer generally not held liable unless they knew or should have known of the harassment and failed to take immediate action.

Discrimination Based on Gender

Employers are forbidden from discriminating against employees on the basis of gender

Discrimination Based on Religion

Employers cannot discriminate against persons because of their religion

Constitutionality of Affirmative Action Programs

Federal action affecting tribes and their members is NOT considered race-based legislation, and thus is subject to rational basis review instead of strict scrutiny (political distinction).

prima facie case

Jiann Min Chang was an instructor at Alabama Agricultural and Mechanical University (AAMU). When AAMU terminated his employment, Chang filed a lawsuit claiming discrimination based on national origin. Chang established a prima facie case because he was a member of a protected class, was qualified for the job, suffered an adverse employment action, and was replaced by someone outside his protected class (a non-Asian instructor). AAMU, however, showed that Chang had argued with a university vice president and refused to comply with her instructions. The court ruled that the university had not renewed Chang's contract for a legitimate reason—insubordination—and therefore was not liable for unlawful discrimination.

The Supreme Court Narrowly Interpreted the ADA

Made it harder for employees to establish a disability under the act

Reasonable Accommodation

Modifying job application process, work environment, or circumstances under which job is performed to enable a qualified individual with a disability to be considered for the job and perform its essential functions. i.e installing wheelchair ramps

Harassment by Supervisors

Supervisor must have taken a tangible employment action against the victim- significant change in employment status or benefit

The Ellerth/Faragher Affirmative Defense

The Faragher-Ellerth affirmative defense is available for claims of harassment under Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act when the employer can prove: 1.) That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2.) That the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

2008 Amendments Reverse Prior Supreme Court Cases

The amendments reverese the courts restrictive interpretation of disability under the ADA and prohibit employers from considering mitigating measures or medications when determining if an individual has a disability

Equal Employment Opportunity Commission (EEOC)

The practice of ensuring that all people have equal access to career opportunities based on their knowledge, skills and abilities.f ederal agency monitors compliance with Title VII. A victim of alleged discrimination must file a claim with the EEOC before bringing a suit against the employer EEOC doesn't investigate ever clam of employment discrimination, generally it investigate only "priority cases"

Federal Statutes

Title Vll= Equal pay act of 1963: The age dissemination= older age have experience get fired because young ppl b/c chapter The American with Disabilities act (ADA)= case: age discrimination when supreme court federal law at age disc due to age apply, federal state and apply 20% male fired from firefighters because of they old and the federal court dismissed b/c is not under 20ppl supreme court didn't said it doesn't matter how many people you have in the

Employment Discrimination

Treating employees or job applicants unequally on the basis of race, color, national origin, religion, gender, age, or disability; prohibited by federal statutes.

Undue Hardship

Under ADA: an employer is not required to make an accommodation to an employee with disabilities if it would impose an "undue hardship" on the operation of the employer's business. Defined as an action that "action requiring significant difficulty or expense" - a relative standard

Age discrimination

Washington post case Nov 2018- the supreme court ruled prohibit that federal age discrimination employment and situation and apply state and local of gov regardless of the size. 40 years old small fire department layed of in AZ of 46 and 54 old, fire fighter, district was small were under 20 ppl, in violation and they violation were older, the case was dismased by federal court because it was under 20 and case went to supreme court and age lime or size doesn't apply.

Association Discrimination

discrimination based on an identified disability of a person with whom the qualified individual is known to have a relationship or an association

Intentional Discrimination

disparate-treatment discrimination •Prima Facie case - initial burden of proof •She is a member of a protected class •She applied and was qualified for the job in question •She was rejected by the employer •The employer continued to seek applicants for the position or filled the position with a person not in a protected class If prima facie case is established, burden shifts to employer who must articulate a legal reason for not hiring plaintiff (for instance, lacked necessary experience) To prevail, plaintiff must show the employer's reason is pretext(not the true reason) and that discriminatory intent motivated employer's decision when you try to apply for Assistant manger at Renaissance, and they keep saying I'm not qualify for prima facie case of illegal discrimination. That means that she met her initial burden of proof and will win unless the employer can present a legal acceptable defense . 32:30

Bona Fide Occupational Qualification

identifiable characteristic reasonable necessary to the normal operation of a particular business (gender, national origin, religion but not race) Job discribation, Ex: women dressing attendant women. Pilot: you can't be a 90 years old weight is not at Hoooters you have to be a girl, BFOQ

Lookism

prejudice based upon looks/appearance discrimination; if you very tractive b/c he can't control him self, would this fall would be discriminators. No because its not under protective class over weight if you not attractive you too skinny if you flat chested if you are short person people who look baby face age disrmination

Title VII Topic

prohibits employers from discriminating against employees or job applicants on the basis of race, color, or national origin. *EEOC- mentor the title VLL issues *Discrimination based on race, color and national origin *Discrimination based on religion *Discrimination based on gender *Sexual harassment *remedies- if an employee has violated one of the federal law employment, the plaintiff can given back, when the time has been terminated or get promotion.

Remedies under Title VII

reinstatement, back pay, retroactive promotions, & damages. Compensatory only if intentional and plaintiff proves it

Unintentional Discrimination no question on the exam

use of interviews and testing, which may have an unintended discriminatory impact on a protected class.

what is a protective class?

would you hire a smoker because you smoker? not hiring a smoker is that discrimination ? No Because its not protective of class If someone comes with tatos and they didn't hire him, protective class,

Discrimination based on disability- Procedures under the ADA

•Reasonable accomodation •Undue hardship •Must pursue claim through EEOC first (if EEOC decides not to sue, then employee can pursue claim) Plaintiff must prove: 1.) Has a disability 2.) Otherwise qualified for the employment in question 3.) was excluded solely because of disability Reasonable accomodation •Otherwise qualified •Undue hardship - significant difficulty or expense (case by case) •Examples - ramps, flexible hours, modifying job assignments

Constructive Discharge

A termination of employment brought about by making the employee's working conditions so intolerable that the employee reasonably feels compelled to leave. ex:Khalil's employer humiliates him in front of his co-workers by informing him that he is being demoted to an inferior position. Khalil's co-workers then continually insult and harass him about his national origin (he is from Iran). The employer is aware of this discriminatory treatment but does nothing to remedy the situation, despite repeated complaints from Khalil. After several months, Khalil quits his job and files a Title VII claim. In this situation, Khalil would likely have sufficient evidence to maintain an action for constructive discharge in violation of Title VII.

Employers' Affirmative defense

As an employer, you want have sexual harassment training &, have policy and procedures reasonable care" to prevent and correct sexually harassing behavior - set up policies and complaint procedure •Did the employee suing for harassment follow these policies and procedures These are called * sexual harassment training. theEllerth/Faraheraffirmative defense

case prima facie case for national organ discrimination

Jiann Min Chang was an instructor at Alabama Agricultural and Mechanical University (AAMU). When AAMU terminated his employment, Chang filed a lawsuit claiming discrimination based on national origin. Chang established a prima facie case because he was a member of a protected class, was qualified for the job, suffered an adverse employment action, and was replaced by someone outside his protected class (a non-Asian instructor). AAMU, however, showed that Chang had argued with a university vice president and refused to comply with her instructions. The court ruled that the university had not renewed Chang's contract for a legitimate reason—insubordination—and therefore was not liable for unlawful discrimination.

Religion case

Miguel Sánchez-Rodríguez sold cell phones in shopping malls for AT&T in Puerto Rico. After six years, Sánchez informed his supervisors that he had become a Seventh Day Adventist and could no longer work on Saturdays for religious reasons. AT&T responded that his inability to work on Saturdays would cause it hardship. As a reasonable accommodation, the company suggested that Sánchez swap schedules with others and offered him two other positions that did not require work on Saturdays. Sánchez could not find workers to swap shifts with him, however, and he declined the other jobs because they would result in less income. He began missing work on Saturdays. After a time, AT&T indicated that it would discipline him for any additional Saturdays that he missed. Eventually, he was placed on active disciplinary status. Sánchez resigned and filed a religious discrimination lawsuit against AT&T. The court found in favor of AT&T, and a federal appellate court affirmed. The company had made adequate efforts at accommodation by allowing Sánchez to swap shifts and offering him other positions that did not require work on Saturdays.

Discrimination based on religion

Reasonable accommodate undue hardship accommodate even if belief is not based on doctrines of a traditionally recognized religion if ask for reason accommodation your request unless need to be excused for certain time for to pray. main stream religion

sexual harassment

The demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment. There are 2 type of sexual harassment: 1) Quid pro quo harassment, something in exchange for something else. Quid pro quo harassment occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, and the like. ex: if you have sex with me I will give you a promotion or if you kiss boss you will get a raise. 2) Hostile work environment, 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." ex: Briseno vs. Diamond Briseno worked in diamand clark sex dimon old, fired worked in 4 weeks, and he didn't get along with there emplyeees, and his supervisor testified that he doesn't get along with with other employees and he didn't fill out the requirements and he didn't fit in b/c he was heterosexual and other employees were home-sexual, Mrs. Briseno said his pictures were taken in the sexy cars and hit and he tolerated this behavior b/c he was afraid to lose his job. and claim now postal wHostile work environmen final discussion: they were evident to support the case that hostile work environment we look at the totality of the circumstance to determine whether there was a pattern of continuous pervasive sexual harassment, plaintiff established method defendant's conduct interfered up at the reasonable employees work performance and effective his psychological well being. determine we look at work was patter and sexual harassment. effect his no tolance procedure

Same Gender Harassment

Title VII extends to same gender harassment but does not prohibit discrimination or harassment based on a persons orientation. **Remember: Title VII does not prohibit discrimination based on sexual orientation.

Roberts v. Mike's Trucking

facts:Teresa Roberts worked for Mike's Trucking, Ltd., in Columbus, Ohio. Her supervisor was the company's owner, Mike Culbertson. According to Roberts, Culbertson called her his "sexretary" and constantly talked about his sex life. He often invited her to sit on "Big Daddy's" lap, rubbed against her, trapped her at the door and asked for hugs or kisses, and asked if she needed help in the rest-room. Roberts asked him to stop this conduct, to no avail. She became less productive and began to suffer anxiety attacks and high blood pressure. Roberts filed a suit in an Ohio state court against Mike's, alleging a hostile work environment through sexual harassment in violation of Title VII. A jury decided in Roberts's favor, and Mike's appealed. * * * Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. Therefore, the focus of this inquiry is: whether a reasonable person would find the environment objectively hostile; and whether the plaintiff subjectively found the conduct severe or pervasive. Roberts also established that Culbertson's conduct unreasonably interfered with her work performance as she stated she did not want to go to work anymore, she became less productive, and she suffered anxiety attacks. Her fiancé testified that Roberts has lost confidence and that she is now prescribed anti-anxiety medication. Evidence sufficiently established that Culbertson's conduct was severe or pervasive enough to create a hostile work environment Morales Cruz v. University of