Employment Discrimination

When is voluntary affirmative action not reverse discrimination?

Affirmative action plan requires that at least 50% of certain new work trainees be black. The court noted that the plan did not require that white employees be fired or excluded all together from advancement. It was only a temporary measure to eliminate actual racial imbalances in the workforce.

What must the employer do to prove that he is not in the wrong?

All the employer need do is establish that a reasonable factor other than age accounted for the discriminatory impact.

Race norming

Comparing an applicant's scores only to members of his or her own racial subgroup and setting separate passing or cutoff scores for each subgroup ***Illegal or prohibited

Civil Rights act of 1866

Complements Title VII of the 1964 Civil Rights Act In section 1981 it states that all persons shall have the same right to make and enforce contracts as enjoyed by white citizens. Since union membership and employment relationships involve contracts, Section 1981 bans racial discrimination in these areas.

What do seniority systems do?

Determine the calculation of vacation, pension, and other fringe benefits. Control many employment decisions such as the order in which employees may choose shifts or qualify for promotions or transfers to different jobs. Used to select the persons to be laid off when an employer is reducing its labor force. (As a result of seniority the last hired are usually the first fired)

The types of employer action in which discrimination is prohibited include...

Discharge Refusal to hire Compensation Promotion Terms, conditions, or privileges of employment

The Civil Rights Act...

Does not protect against discrimination based on age.

To win a Title VII class action case a plaintiff must prove...

Either disparate (unequal) treatment or disparate impact.

Appearance requirements

Employers often have set grooming standards for their employees. Those regulating hair lengths of males or prohibiting beards or mustaches have been among the most common. Motivation for these rules stems from the feeling of the employer that the image it projects to the public through its employees will be adversely affected if their appearance is not proper. It is unclear whether they are legal or illegal and there have been rulings both ways. A delivery driver who is Islamic and by religion needs a beard cannot be fired for having a beard because of religious discrimination. Black people who don't shave because they have razor bumps which is a medical condition cannot be fired for having a beard unless not having a beard is business necessity The burden of proof in a disparate impact case requires the employer to prove that appearance is a business necessity.

Questionnaires, Interviews, Testing, and Educational Requirements

Employers use these tools to help them find the right person for the job but must be careful that they do not use the tools to illegally discriminate. ***Questions regarding religion and sex lives are illegal. Interviews cannot be biased. Interviewers tend to select males over females for sales positions because the interviewers subconsciously related sales success with height and males are often taller than females. Tests can have a disparate impact on job applicants discriminating on the basis of sex, race, color, religion, and natural origin. Setting educational standards can also have a disparate impact. To avoid discrimination challenges, employers must make sure that all testing and educational requirements are job related and necessary for the business. Race norming is setting two different cutoff test scores for employment based on race or one of the other Title VII categories and is prohibited under the civil rights act amendments of 1991. ****Most employment practices that discriminate illegally do so because of their disparate impact.

Employers who want arbitration should...

Ensure that the arbitration laws offer same remedies as the antidiscrimination laws. Allowing limited discovery in arbitration. Permitting employees to help choose an arbitrator. Not requiring the employee to pay arbitration fees and costs.

Federal Communications Commission

Has prohibited employment discrimination by its licensees (Radio and TV stations) and has required the submission of affirmative action plans as a condition of license renewal.

What is not included by the ADA but are protected disabilities?

Homosexuality, sexual behavior disorders, compulsive gambling, kleptomania, and disorders resulting from drug or alcohol use. Employee who recovers or is in recovery for drug or alcohol abuse is covered.

The EEOC regulations on genetic information are intended to...

Prohibit the use of genetic information in employment decisions. Restrict employers from requesting, requiring, or purchasing genetic information. Require that genetic information be maintained as a confidential medical records and place strict limits on the disclosure of genetic information. Provide remedies for individuals whose genetic information is acquired, used, or disclosed in violation of GINA.

National Labor Relations Act

National Labor Relations Board rules that appeals to racial prejudice in a collective bargaining representation election constitute and unfair labor practice. Also revoked the certification of unions that practice discriminatory admission or representation policies. Terms and condition of employment are the employers obligation to bargain with certified unions over matters of employment discrimination.

If a white employee is removed or demoted for a black employee because there is an unequal representation of black, is that legal?

No under representation of a race is not enough to show discrimination and demote him.

Historically, common law...

Permitted employers to hire and fire virtually at will, unless restrained by contract or statute.

Insuring against employment discrimination claims

Policies generally dont cover intentional torts. Intent is a key element in discrimination cases. General policies dont cover the back pay or mental anguish that many plaintiffs seek. Liability insurance is aimed at discrimination claims. Insurance policies are more likely to insure against disparate impact claims rather than disparate treatment claims..

The public's feelings on affirmative action

Polls show that almost three-fourths of the general population disapprove of affirmative action and nearly 50% of blacks are opposed.

Genetic Information Nondiscrimination Act (GINA)

Prohibits covered employers from firing, refusing to hire, or otherwise discriminating against individuals on the basis of their genetic information or a family member's genetic information. Under GINA it is unlawful for an employer to request, require, or purchase genetic information with respect to an employee or the family member of an employee with limited exceptions.

Harassment by supervisors

Quid Pro Quo harassment involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit. Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees.

Discrimination on the basis of disability

To help those with disabilities obtain work, Congress passed the Americans with Disabilities Act. Responding to criticism that the US supreme court unreasonably restricted the scope of the ADA, congress passed the ADA amendments act to expand it to a broader group of individuals.

The focus of equal pay act cases is whether...

the male and female jobs being compared involve equal work. Equal does not mean identical but means substantially equal.

The ADA prohibits employer discrimination against job applicants or employees based on...

1. Their having of a disability 2. Their having of a disability in the past 3. Their being regarded as having a disability

The provisions of the Civil rights act of 1964 apply to employers with...

15 or more employees labor unions and certain other employees

A employee must file charges of illegal discrimination with the EEOC within...

180 days after notice of the unlawful practice. *** must file in a timely fashion

The Civil Rights Act of 1964 provides that...

In spite of other provisions in the act, it is not an unlawful employment practice for an employer to employ different employment standards under a bona-fide (good-faith) seniority system if the differences are not the result of an intention to discriminate. ****Also is the most widely used anti-discrimination statute

Primary objective of the civil rights act of 1964

Integration of blacks into the mainstream of american society.

Griggs v. Duke Power Company

Invalidated high school diploma requirement for certain blue collar positions, where 34 percent of white males in state had completed high school while only 12 percent of African American males had done so, and defendant did not demonstrate link between high school diploma and job performance.

Retaliation

It is illegal for employers to retaliate against employees for opposing discrimination, filling a charge of discrimination, giving testimony in a discrimination case, or in any way participating in a discrimination case. Such retaliation involves employers taking action against employees that would dissuade a reasonable person from engaging in an act of protest.

Is imbalances in race in a company illegal?

No it is not enough to prove discrimination.

Private employer affirmative action

Not all affirmative action programs arise under federal contracting rules. Courts also impose affirmative action on private employers to overcome a history of prior discrimination. Sometimes private employers voluntarily adopt affirmative action or agree to it with unions. These affirmative action programs can give rise to claims of reverse discrimination.

Businesses must reasonably accommodate...

Not only employees for their disabilities under the ADA, but also customers and others who use public facilities such as hotels, restaurants, theaters, schools.

The EEOC is composed of...

5 members, not more than three of whom may be members of the same political party. They are appointed by the president, with the advice and consent of the Senate and serve a 5 year term.

A crane operator, due to his disability, requests an adjustment in his work schedule so that he starts work at 8:00 a.m. rather than 7:00 a.m., and finishes one hour later in the evening. The crane operator works with three other employees who cannot perform their jobs without the crane operator. As a result, if the employer grants this requested accommodation, it would have to require the other three workers to adjust their hours, find other work for them to do from 7:00 to 8:00, or have the workers do nothing. Must the accommodation by provided?

?

English fluency

A fluency requirement is only permissible if required for the effective performance of the position for which it is imposed.

Sexual harassment

Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, the U.S. Supreme Court has interpreted Title VII's prohibition against sex discrimination to include a prohibition against sexual harassment. Two forms of sexual harassment... -Hostile work environment -Quid Pro Quo.

Religion: employment discrimination

Employers may not treat employees or applicants less - or more - favorably because of their religious beliefs or practices. Employers must reasonably accommodate employees' sincerely held religious beliefs or practices unless doing so would impose an undue hardship on the employer

One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. The marginal functions of a second crew member include cleaning the small kitchen in the employee's lounge, which is something the first crew member can perform. Can the employer switch employee duties?

Job restructuring ?

Reasonable Accommodation may include...

Making the work facilities accessible and usable to disabled employees Restructuring jobs or modifying work schedules. Purchasing or modifying necessary equipment for use by the disabled. Providing appropriate training materials or assistance modified to fit the needs of disabled employees.

Federal Arbitration Act

Prefers arbitration over litigation but may not apply to certain employment contracts.

Discrimination on the basis of religion

Religious corporations, associations, or societies may discriminate on the basis of religion but not on race, color, sex, or natural origin. Other employers cannot discriminate on the basis of religion in employment practices, and they must make reasonable accommodation to the religious needs of their employees if it does not result in undue hardship to them. ***Employees cannot be required to pay union dues if they have religious objections to unions. ***A supreme court case ruled that it rightfully fired a employee who refuses to work on Saturdays for a religious belief. You cant ridicule employees who pray or practice their religious beliefs.

Americans with Disabilities Act

Requires employers to offer reasonable accommodation to employees or applicants with a "disability" who are otherwise qualified for the job they hold or seek. ***The duty of reasonable accommodation ends at the point at where it becomes an undue hardship.

Reasonable Accommodation under the ADA

The ADA does not require employers to hire the unqualified disabled, but they must make reasonable accommodation so qualified disabled employees can succeed in the workplace. Reasonable accommodation is the process of adjusting a job or work environment to fit the needs of disabled employees.

Remedies under the ADEA

The ADEA provides for back pay and recovery of attorney fees. ***Willful discrimination's of the act permit discrimination victims to be awarded double damages.

Under the Equal Employment Opportunity Act of 1972

The EEOC can file a civil suit in a federal district court and represent a person charging a violation of the Act. However it must first exhaust efforts to settle the claim.

The most important statute eliminating discriminatory employment practices is...

The civil rights act of 1964

Employers defense to hostile environment

The employer is not always legally responsible for a hostile environment. Courts have ruled that an employer is liable to a plaintiff employee for a hostile working environment created by fellow employees only when the employer knows of the problem and fails to take prompt and reasonable steps to correct it. The employer can defend himself by proving that it exercised reasonable care to prevent and correct promptly and sexual harassing behavior, and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

To establish a case for BFOQ...

The employer must be able to demonstrate that the discriminatory criteria is sufficiently related to the job in question and that it's a necessity for the general operation of the business... -Where is is necessary for the purpose of authenticity or genuineness (e.g., model, actor, actress). -Or maintaining conventional standards of sexual privacy (e.g., locker room attendant, intimate apparel filter).

Decisions based on seniority have been challenged in recent years as violating...

The laws relating to equal employment opportunity. Challenges often arise when recently hire members of minority groups were laid off during periods of economic downturn.

Quid pro quo case

This for that case with sexual harassment

Qualified Disabled are defined as those...

With a disability who, with or without reasonable accommodation, can perform the essential functions of a particular job position. Employers must only make reasonable accommodation only for the qualified disabled.

When can a plaintiff not recover remedies under ADEA?

A plaintiff cannot recover money damages against a state entity. State law and state courts, however, may offer remedies for age discrimination perpetrated by the state.

Affirmative action

A series of presidential executive orders have promoted nondiscrimination and affirmative action by employers who contract with the federal government. The authority of these orders rests with the president's executive power to control the granting of federal contracts. As a condition to obtaining such contracts employers must agree to take affirmative action to avoid unlawful discrimination in recruitment, employment, promotion, training, rate of compensation, and layoff of workers. It is not unusual for an employment ad to state that the company is an affirmative action/equal opportunity employer

Difference between taking affirmative action and setting a quota and which one is legal.

Affirmative action is take to help correct historic workforce imbalances and usually has target goals that are pursued for a limited time. On the other hand, quotas set rigid standards for various groups, such as that 50% of the workforce must be female. *******The 1991 Civil rights act amendments prohibit the setting of quotas in employment.

The EEOC has issued guidelines intended to protect employers who set up affirmative action plans. These guidelines indicate that Title VII is not violated if...

An employer determines that there is a reasonable basis for concluding that such a plan is appropriate and the employer takes reasonable affirmative action. For example, if an employer discovers that it has a job category that one might expect to find more women and minorities employed than are actually in its workforce, the employer has a reasonable basis for affirmative action to hire more women and minorities.

The ADA defines disability as...

Any physical or mental impairment that substantially limits one or more of the individuals major life activities. Substantially limits now requires a lower degree of limitation than was previously applied by the courts. Physical and mental impairment includes physical disorders and conditions, disease, disfigurement, amputation affecting a vital body system, psychological disorders, mental retardation, mental illness, and learning disabilities.

Remedies under the ADA

Basically the same remedies available under the Civil Rights Act, including hiring, re-installment, back pay, front pay, injunctive relief, and compensatory and punitive damages. The plaintiff must first seek administration remedies with the EEOC. Compensatory and punitive damages are not available for policies that merely have disparate impact. Only available for intentional discrimination and for other employer actions such as failing to make reasonable accommodation for known job applicant or employee disabilities.

What is race?

Being Arabic or Jewish ancestry constitutes as race. Race includes the descendants of a particular family, tribe, people, or nation. Section 1981 protects all persons of all races from discrimination.

An individual can demonstrate that he or she is regarded as having a disability by...

Establishing that he or she has been subjected to an action prohibited by the ADA "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. Major life activities include such activities as caring for ones self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Also includes the operation of any major body function such as digestive, immune system, brain, respiratory, reproductive functions. Individuals who use medications, artificial limbs, or hearing aids qualify for protection under the ADA, even though those measures may overcome the limiting effects of an impairment. Any disability that has an expected duration of 6 months or less does not fall under the ADA. However, individuals with cancer or remission, diabetes, or epilepsy are covered.

State Anti discrimination Laws

Federal laws concerning equal employment opportunity specifically permit state laws imposing additional duties and liabilities. Fair employment practices legislation has been introduced and passed by many state legislatures. A typical state act makes it an unfair employment practice for any employer to refuse to hire otherwise discriminate against any individual because of his race, color, religion, national origin, or ancestry and if they do they are guilty of an unfair employment practice. States usually set up administrative bodies with the power to make rules and regulations and hear and decide charges of violations filed by complainants. State anti discrimination laws sometimes protect categories not protected under federal law such as sexual orientation, weight, and height. These laws may permit discrimination lawsuits against employers of fewer than 15 employees. Also offers remedies to victims of sexual harassment. Discrimination plaintiffs can also sue employers under various state common law causes of action like negligence, assault, battery, intentional infliction of mental distress, invasion of privacy, and defamation. Under common law they can receive unlimited compensatory and punitive damages.

The affirmative action requirement means that...

Federally contracting employers must actively recruit members of minority groups being underused in the workforce. That is, employers must hire members of these groups when there are fewer minority workers in a given job category than one could reasonably expect, considering their availability. In many instances, employers must develop written affirmative action plans and set goals and timetables for bringing minority (or female) workforce's up to their percentages in the available labor pool.

Two advantages to filing a suit based on Section 1981

First, there are no procedural requirements for bringing such a suit, whereas there are a number of fairly complex requirements plaintiffs must follow before bringing a private suit under Title VII. ***(For example under Title VII before a plaintiff can file a lawsuit against an employer, the plaintiff must file charges of discrimination with the EEOC and obtain a notice of right to sue from the agency) Second, under it the courts can award unlimited compensatory and punitive damages. There are no capped limits as there are under Title VII with the 300,000 dollar limit. ******As a practical matter, parties alleging racial discrimination usually sure under both Section 1981 and Title VII

Health Insurance Portability and Accountability Act (HIPAA)

Forbids group plans and issuers from excluding an employee from insurance coverage or requiring different premiums based on the employees health status, medical condition or history, genetic information, or disability.

When is age discrimination legal?

Gave junior officers in the police department got high raises and senior officers got lower raises They merely attempted to match the salaries offered to junior officers in nearby cities which was a reasonable factor other than age. ****Must be a reasonable factor other than age.

Seniority Systems

Give priority to those employees who have worked longer for a particular employer or in a particular line of employment of the employer. Employers may institute seniority systems on their own but in a union shop they are usually the result of collective bargaining (they decide collectively) and their terms are spelled out in the agreement between the company and the union. Title VII specifically allows employers to adopt seniority systems even when they may operate to discriminate against protected groups.

Age Discrimination in Employment Act (ADEA)

It prohibits employment discrimination against employees ages 40 and older, and it prohibits the mandatory retirement of these employees. Only certain executives and high policy makers of private companies can be forced into early retirement. Specifically, bona-fide executives and high level policy makers age 65 and older who are entitled to receive annual retirement benefits of at least 44,000 a year are subject to mandatory retirement policies. The ADEA applies to employers with 20 or more employees. Also invalidates retirement plans and labor contracts that violate the law. The ADEA recognizes both disparate treatment and disparate impact in age discrimination cases. Although courts will uphold job-related physical requirements if they apply on a case by case basis, they frequently find as illegal those policies that prohibit the hiring of persons beyond a maximum age or that establish a maximum age beyond which employees are forced to retire for physical reasons.

The Labor Department administers executive orders through...

Its Office of Federal Contract Compliance Programs (OFCCP)

Although the Civil rights Act of 1866 originally protected against race discrimination in the making and enforcement of contracts...

Its early effectiveness was limited.

Arbitration in Employment Discrimination

Many employers are placing arbitration clauses in employment contracts and personal handbooks. The EEOC says that this is not legal and contrary to the fundamental principles of antidiscrimination laws. Supreme court has sometimes upheld arbitration clauses.

Passage of the labor law...

Marks the first significant federal constraint on a relatively unrestricted right of employers to hire and fire.

Height and Weight requirements

Minimum or maximum job requirements apply equally to all applicants, but if they have the effect of screening out applicants on the basis of race, national origin, or sex, the employer must demonstrate that such requirements are validly related to the ability to perform the work in question. Maximum size standards would be permissible, even if they favored women over men, if the available work space was to small to permit large persons to perform the duty of the job properly. Most size requirements have dictated minimum heights or weights, often based on a stereotyped assumption that a certain amount of strength that smaller persons might not have probably was necessary for the work. A Mexican who is small because of his race and national origin and does not meet the height requirements for the police won his case because that rule discriminates against height requirements and was later hired when he passed a physical agility examination.

Reverse discrimination occurs when...

Minorities or women with lower qualifications or less seniority than white males are given preference in employment or training. Even though such programs are intended to remedy the effects of present or past discrimination or other barriers to equal employment opportunity, white males have argued that the law does not permit employers to discriminate against them on the basis of race or sex any more than it allows discrimination against minorities or women.

The American workforce is graying

More working Americans are retiring later in life.

Remedies for violating the equal employment opportunity act

Re-installment with back pay or other actions that will make the victim of illegal discrimination whole, including injunction against future violations of the act by the defendant. Congress amended the act to allow the recovery of compensatory and punitive damages up to 300,000 depending on the size of the employer. -compensatory- pain and suffering of discrimination -punitive- discrimination with malice or reckless indifference to the rights of others.

His supervisor sends him many detailed memorandum which he often has trouble understanding. However, he has no difficulty understanding oral communication. The employee requests that the employer install a computer with speech output and that his supervisor send all memorandum through electronic mail which the computer can then read to him. The supervisor asks whether a tape recorded message would accomplish the same objective and the employee agrees that it would. Does the employer have to provide a computer with speech output?

Reasonable Accommodation ?

For BFOQ to exist there must be...

Reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved. *Sex must be provably relevant to job performance.

Differences and similarities of Section 1981 and Title VII

Section 1981 does not cover discrimination based on sex, religion, national origin, age, or handicap. Only applies to racial discrimination. Section 1981 applies to only the actual hiring and firing of employees based on race. Section 1981 did not offer protection against a hostile work environment. The Civil Rights Act amendments of 1991 redefined Section 1981 to include protection against discrimination in "enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." 1981 now extended to hostile work environment and retaliating for complaining about race discrimination.

When is discrimination in pay allowed?

Seniority system Merit System Factors other than sex

Employment practices that may be challenged

Setting testing and educational requirements Having height and weight requirements for physical labor. Maintaining appearance requirements Practicing affirmative action (an action or policy favoring those who tend to suffer from discrimination) Using seniority systems

Government-imposed affirmative action plans are subject to...

Strict judicial scrutiny under equal protection guarantees of the 5th and 14th amendment. To be constitutional, such plans must now be supported by a compelling interest. Adarand Constructors, Inc. v Pena supreme court ruling emphasizes this The Adarand decision will make it constitutionally difficult to justify some government imposed affirmative action plans.

Americans with Disabilities Act of 1990 (ADA)

The ADA prohibits employers from requiring a preemployment medical examination or asking questions about the job applicants medical history. Only after a job offer has been extended can the employer condition employment on the employees responses to job-related medical conditions. The ADA prohibits employers of 15 or more employees (also unions with 15 or more members and employment agencies) from discriminating against the qualified disabled with respect to hiring, advancement, termination, compensation, training, or other terms, conditions, or privileges of employment.

Discrimination in getting and keeping health insurance

The Health Insurance Portability and Accountability Act primarily prevents discrimination against individual employees in small businesses. Employees who leave their old employer and join a new employer are not denied health insurance. The Affordable Care Act prohibits insurance companies from refusing to sell coverage to renew policies because of an individuals preexisting condition.

Office of Federal Contract Compliance Programs (OFCCP)

The OFCCP can terminate federal contracts with employers who do not comply with its guidelines and can make them ineligible for any future federal business. It required a company to give its female employees an estimated 18 million in back pay to compensate past employment discrimination. The alternative was elimination of 36 million of existing federal contracts and ineligibility for future federal business.

Undue hardship in ADA

The employer can plead undue hardship, defined as an action requiring significant difficulty or expense, as a reason for not accommodating to the needs of disabled employees. The ADA specifies that in evaluating undue hardship, the cost of accommodation, the resources of the employer, the size of the employer, and the nature of the employers business be considered.

Employer defenses in ADEA cases

The employer defenses to age discrimination, disparate treatment, and disparate impact differ slightly from the defense in Title VII cases. Under the ADEA, age is seldom recognized as a basis for a BFOQ. It is recognized that as people grow older, their physical strength, agility, reflexes, hearing, and vision tend to diminish in quality. However this generally provides no legal reason for discriminating against older persons as a class. Age can be a BFOQ in a case where the airlines imposed a maximum age for hiring new pilots. The court observed that the Federal Aviation Administration mandated a retirement age for pilots. The ADEA also does not require the employer to prove a business necessity in order to successfully defend an age discrimination case of disparate impact. All the employer need do is establish that a reasonable factor other than age accounted for the discriminatory impact. ***Unlike Title VII, the employers defense of a reasonable factor other than age cannot be defeated by the employee's showing of a less discriminatory way of achieving the employers purpose.

Sexual orientation and LGBQT

Title VII does not say you cant discriminate based on sexual orientation or whether they are gay, lesbian, bi, or trans.

If discrimination is a substantial or motivating factor...

An employers practice is illegal even though other factors such as consumer preference also contributed.

How to request for reasonable accommodation

An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. To request accommodation, an individual need not mention the ADA or use the phrase reasonable accommodation. ***Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." ***Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." This is a request for a reasonable accommodation. ***Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

Hostile work environment: sexual harassment case

Another type of sexual harassment in which co-workers made offensive sexual comments or propositions, engage in suggestive touching, show nude pictures, or draw sexual graffiti. Title VII prohibits this even when there is no economic loss. Does not have to involve injury only must be hostile or abusive to the employee. ***Focuses on the environment

A reasonable religious accommodation is...

Any adjustment to the work environment that will allow the employee to practice his religion. -Flexible scheduling -Voluntary substitutions or swaps -Job reassignments and lateral transfers -Modifying workplace practices, policies and/or procedures

When does Americans with Disabilities Act of 1991 apply to employers?

Applies to all employers with 15 or more employees.

2 forms of sexual harassment

1. Quid Pro Quo 2. Hostile Work Environment

Accent discrimination

An employer may not base a decision on an employees foreign accent unless the accent materially interferes with job performance.

Disparate Impact

A facially neutral policy or practice that has a discriminatory impact on a protected class. Plaintiff must show statistically that the rule disproportionally restricts employment opportunities for a protected class. Burden shifts to employer to show there is a business necessity for the practice. Plaintiff can still win by showing the business necessity is a pretext. *Power company could not show business necessity for policy requiring high school diplomas and IQ tests for certain jobs.

The typical sexual harassment case involves...

A plaintiff who has been promised benefits or threatened with loss if she or he does not give sexual favors to an employment supervisor. Such a case is also called a quid pro quo (this for that) case

Instances where BFOQ does not apply in hiring and is illegal

A rule requiring airline stewardesses, but not stewards to be single. A policy of only hiring females as flight cabin attendants. A rule against hiring females with preschool age children but not for males with such children. A telephone company policy against hiring females as switchers because of the alleged heavy lifting involved in the job.

What is the definition and qualifications for a disability

ADA defines disability as... -Physical or mental impairment that "substantially limits one or more of major life activities; or -A record of such impairment; or -Being regarded as having such an impairment. Determination is decided on a case-by-case basis.

Equal pay includes...

All payments, including fringe benefits such as stock options, incentive bonuses, and other benefits such as vacation or holiday pay, reimbursement for travel, and retirement benefits.

Regarding general hiring, referrals, advertising, and admission to training or apprenticeship programs...

Allows discrimination only on the basis of religion, sex or natural origin and only where these considerations are bona fide occupational qualifications. For example it is legal for a baptist church to refuse hiring a a Lutheran minister. Sex can be discriminated against with actors and actresses. The ommisson of race and color from this exception means that Congress is unwilling to make any of these two factors a bona fide occupational qualification. For veterans their is preferential treatment where employers can discriminate if they do not pass a ability test specified for that job.

Undue Hardship

An action or accommodation that is excessively costly, extensive, substantial, or disruptive, or fundamentally would alter the nature or operation of the business

When can an employer deny reasonable accommodation?

An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

Employment agencies, employers, and unions are also prohibited from...

Discriminating against an employee, applicant, or union member because he/she has made charge, testified, or participated in an investigation or hearing under the act or otherwise opposed any practices made unlawful. These are the statutes anti-retaliation provisions.

Sexual harassment: Hostile environment

Discriminatory intimidation, ridicule and insult. Dirty jokes, offensive pictures, swearing, and personal ridicule and insult constitute sexual harassment when an employee finds them offensive.

Proving age discrimination

Disparate treatment or disparate impact. Inference of discrimination raised if qualified member of protected class is replaced by younger worker.

Defenses to age discrimination

BFOQ Seniority systems Executive exemption After-acquired evidence of misconduct

Statutory defenses to Title VII

Bona Fide Occupational Qualification (BFOQ) (Allows employer to discriminate when the favored characteristic is necessary for performance of the job.) does not apply to discrimination based on race or color. Merit (ability) Seniority Systems (Decisions such as promotions, pay, and layoffs are made on the basis of an employee's seniority or length of service)

What do courts require with policies that may have disparate impact?

Courts require proof, not mere assertion, of job relatedness before upholding an employers discriminatory personnel test or other practice.

Equal Employment Opportunity Commission (EEOC)

Created by the Civil Rights Act of 1964. This agency has the primary responsibility of enforcing the provisions of this act.

An employer is not required to accommodate an employee's religious beliefs and practices if...

Doing so would impose an undue hardship on the employers' legitimate business interests. Requires more than ordinary administrative costs. Diminishes efficiency in other jobs. Infringes on other employees' job rights or benefits. Impairs workplace safety. Causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work. *Undue hardship

What happens if a plaintiff makes prima facie case?

The burden shifts to the employer. (Business is now defending themselves) To show nondiscriminatory business reasons for rejecting the plaintiff.

When can employers discriminate?

Employers, employment agencies, and labor unions can discriminate on the basis of religion, sex, and natural origin where there are bona fide occupational qualifications (BFOQs) reasonably necessary to normal business operations. Defense to intentional discrimination is a BFOQ

How to avoid retaliation claims?

Comply with all posting requirements Have a written policy prohibiting discrimination and specifying reporting procedures. Treat complaints seriously as soon as they are made. Investigate the complaint. Be sure everyone follows the companies policies on discrimination and harassment. Follow up with complaint and explain how you will address the problem. Create an atmosphere where others feel comfortable filing a complaint. Never retaliate against a complaint or witness.

Defenses to equal pay act

Defenses include Bona fide seniority system, Bona fide merit system, pay based on quantity of output, factors other than sex.

Sexual harassment: Quid pro quo

Demands sexual favors as a condition of employment.

Employment agencies are prohibited from...

Either failing to refer or from actually referring and individual for employment on the basis of race, color, religion, sex, or national origin. This differs from the law biding employers, where it is only unlawful to fail or refuse to hire on discriminatory grounds-- the affirmative act of hiring for a discriminatory reason is apparently not illegal.

Online Harassment

Employees can create hostile work environment using chat, email to spread racial and sexual jokes and slurs. Employers can avoid liability with prompt remedial action. Employees may be discharged for using company computers to distribute offensive material to coworkers.

Harassment by Co-Workers

Employer generally liable only if employer knew or should have known and failed to take action. -Employee notice to supervisor is notice to Employer under agency law. Employers may also be liable for harassment by non-employees. *Same-sex harassment also violates Title VII.

Pregnancy Discrimination Act

Employers can no longer discriminate against women workers who become pregnant or give birth. Employers with health or disability plans must cover pregnancy, child birth, and related medical conditions in the same manner that other conditions are covered. Covers unmarried and married women. Not aloud to have a women stop working if they are expecting a baby until she can no longer fulfill her duties. Employers cannot determine the time a women gets for leave with a new born child. With abortion they have to provide sick leave. Health insurance plans must cover male as well as female pregnancies and cannot discriminate based on gender.

Age Discrimination in Employment Act

Employers with 20 or more employees, Employment agencies, and Unions may not discriminate against employees that are aged 40 or older based on age.

English-only rules

English-only rules must be adopted for nondiscriminatory reasons. An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer's business

EEOC's Uniform Guidelines on Employee Selection Criteria

Finds an adverse impact if members of a protected class are selected at a rates less than four fifths (80 percent) of that of another group. For example, if 50 percent of white applicants receive a passing score on a test, but only 30 percent of African-Americans pass, the relevant ratio would be 30/50, or 60 percent, which would violate the 80 percent rule. ***The 80 percent rule is more of a rule of thumb for administrative convenience, and has been criticized by courts.

After labor laws in connection with the war effort...

Franklin D. Roosevelt issued executive orders requiring a clause prohibiting racial discrimination in all federal contracts with private contractors. More executive orders and affirmative action followed this.

Discrimination on the basis of sex

Historically, many states have enacted laws designed to protect women. Many states by statute have prohibited the employment of women in certain occupations such as those that require lifting heavy objects. These are not a defense under EEOC and do not provide a employer with BFOQ in hiring standards. Employers may not have separate male and female seniority lists.

The EEOC has the authority to...

Hold hearings Obtain evidence Subpoena and examine witnesses under oath.

When is it a hostile work environment?

Hostile environment occurs when the workplace is "permeated" with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim's employment. The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.

ADA: Reasonable accommodation

If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. (Examples: wheelchair ramps, flexible working hours, improved training materials.)

Who decides the accommodation that will be effective?

If more than one accommodation is effective, the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations

When do employers have a defense for sexual harassment?

If they took reasonable care to prevent and correct promptly any sexually harassing behavior" by establishing and distributing effective harassment policies and procedures. If the employee suing for harassment failed to follow these policies and procedures.

Sexual harassment is actionable under Title VII only if...

It is so severe or pervasive as to alter the conditions of the victims employment and create an abusive working environment. Workplace conduct is not measured in isolation but measured in the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with the employees work performance. Plaintiff must file within 180 days and employer is liable if they are apart of that hostile environment that continued within the 180 day period.

Discrimination criteria subjects

Language (If you need to use a language and don't know it then its okay to discriminate) Accent discrimination (An employer may not base a decision on an employees foreign accent unless the accent materially interferes with job performance) English fluency (A fluency requirement is only permissible if required for the effective performance of the position for which it is imposed) English-only rules (English-only rules must be adopted for nondiscriminatory reasons. An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer's business)

An employer has a policy prohibiting employees from eating or drinking at their workstations. An employee with insulin dependent diabetes explains to her employer that she may occasionally take too much insulin and, in order to avoid going into insulin shock, she must immediately eat a candy bar or drink fruit juice. The employee requests permission to keep such food at her workstation and to eat or drink when her insulin level necessitates. Must the employer grant the request?

Modified Workplace policies ?

An employee with HIV infection must take medication on a strict schedule. The medication causes extreme nausea about one hour after ingestion, and generally lasts about 45 minutes. The employee asks that he be allowed to take a daily 45‑minute break when the nausea occurs. Must the employer grant the request?

Modified or Part-Time schedule ?

Comparable work theory

Not reliable and other courts have not agreed with the theory.

Disparate Treatment

One individual treated less favorably because of color, race, religion, sex, national origin.

Employment conditions and benefits that have been found to be violations include...

Permitting racial insults in the work situation. Maintaining all white or all black crews for no demonstrable reasons. Providing better housing for whites than blacks. Granting higher average Christmas bonuses to whites than blacks for reasons that are not persuasive.

Who is covered under the Americans with disabilities act?

Persons with certain diseases Mental disabilities Employee recovering Alcoholism and drug addiction

What must a plaintiff have to prove with disparate treatment?

Plaintiff mus prove discriminatory motive. Prima facie cases require proving... -Plaintiff is within a protected class. -Plaintiff applied for a job or promotion. -Plaintiff possessed minimum qualifications. -Plaintiff was denied the job or promotion. -Employer continued to look for someone to fill the position.

Policies with disparate impact that are illegal

Policies that apply equally to everyone but that discriminate in greater proportion against minorities and have no relation to job qualification. Examples... -Using personnel tests that have no relation to job qualification which have the effect of screening out minorities. -Denying employment to unwed mothers, when minorities have a higher rate of illegitimate birth. -Refusing to hire people because of a poor credit rating, when minorities are disproportionately affected. -Giving hiring priority to relatives of present employees, when minorities are underrepresented in the workforce. -Excluding applicants for employment based on conviction records when irrelevant to the job and statistics show racial imbalance in conviction rates.

According to the EEOC, examples of justifiable English-only rules include...

Policies that are needed to promote the safe or efficient operation of the employer's business. Communication with customers, coworkers, supervisors who only speak English. Emergencies in which workers must speak a common language for safety reasons. Cooperative assignments in which the use of a common language is needed for efficiency. ***The key is business necessity.

Equal Pay Act of 1963

Prevents wage discrimination based on gender to remedy situations where women were paid less than men for doing the same job.

Equal pay act

Prohibits an employer from discriminating between employees on the basis of gender in the payment of wages for performing substantially the same work under similar working conditions and in the same establishment. For jobs to be equal, they must require equal skill, effort, and responsibility. Statistical analysis Employee must file within 180 days of pay discrimination or they lose their claim.

Civil Rights Act of 1964

Prohibits discrimination in employment based on, race, religion, sex, natural origin, color. Applies to employers with 15 or more employees, Unions. Also applies to employment agencies

Title VII prohibits discriminatory employment practices based on race or color that involve...

Recruiting Hiring Promotion Discharge Application of the terms and conditions of employment. Intentional discrimination Policies with disparate impact

Examples of illegal sex discrimination

Refusing to hire a female newscaster because news coming from a women sounds like gossip. Allowing women to retire at age 50, but requiring men to wait till 55. Failing to promote women to overseas positions because foreign clients were reluctant to do business with women.

A common type of illegal sex discrimination in the workplace is...

Sexual harrasment

The employer can defeat the plaintiffs claim in a disparate impact case by proving...

The business necessity defense. This defense requires that the employer prove that the practices or policies used are job related and consistent with business necessity. The plaintiff can still file a violation by showing that other policies would serve the legitimate interests of business necessity without having undesirable discriminatory effects.

In proving disparate treatment...

The plaintiff must convince the court that the employer intentionally discriminated against the plaintiff and that any alleged legitimate reason for such treatment are a mere pretext for discrimination.

In a disparate impact case...

The plaintiff must prove that the employers practices or policies had a discriminatory effect on a group protected by Title VII.

Discrimination on the basis of national origin

Title VII's prohibition against national origin discrimination protects various ethnic groups in the workplace. Discrimination concerning the speaking of a native language frequently causes national-origin lawsuits. For instance courts have ruled illegal an employers rule against speaking Spanish during work hours when the employer could not show a business need to understand all conversations between Hispanic employees. On the other hand, some courts have held that if jobs require contact with the public, a requirement that some employees speak English may be a business necessity. Many commercial treaties with foreign countries give foreign companies operating in the US the right to hire executive level employees of their choice.

EEOC guidelines that forbid employers...

To classify jobs as male or female To advertise in help-wanted columns that are designated male or female, unless sex is a bona fide job qualification.

Purpose of the civil rights act of 1964

To eliminate job discrimination based on race, color, religion, sex, or natural origin.

that all men are created equal

Was one of the self evident truths recognized by the Founding fathers in the deceleration of independence. Under this system white males came to dominate the job market in their ability to gain employment and their salaries and wages.

Equal work requirements for equal pay act

Work requiring equal skill, effort, responsibility, working conditions.

Examples of practices that may be subject to a disparate impact challenge include...

Written tests Height and weight requirements Educational requirements

Even if the plaintiff proves disparate treatment...

the defendant can still win by showing that all or substantially all members of the plaintiffs class cannot perform the duties of the job under BFOQ.