Chapter 4

The Civil Rights Act of 1964

divided into several sections, or titles, each dealing with a particular facet of discrimination (e.g., voting rights, public accommodations, public education). Title VII is most relevant to the employment context because it prohibits discrimination on the basis of race, color, religion, sex, or national origin in all aspects of employment (including apprenticeship programs).

essential

A qualified individual is one who is able to perform the essential (i.e., primary) functions of a job with or without accommodation. An employer's written job description is instrumental in determining essential function Job functions that require relatively more time and have serious consequences of error or nonperformance associated with them.

• essential functions

job functions that require relatively more time and have serious consequences of error or nonperformance associated with them

seniority system

is a scheme that, alone or in tandem with "nonseniority" criteria, allots to employees ever-improving employment rights and benefits as their relative lengths of pertinent employment increase

Seniority systems

Although there are a number of legal questions associated with their use, Title VII explicitly permits bona fide seniority, merit, or incentive systems "provided that such differences are not the result of an intention to discriminate." existing in companies granting preference to seniors in accordance with their length of service or seniority. The act provides that a seniority system that intentionally discriminates against the members of a protected group can be challenged (within 180 days) at any of three points: (1) when the system is adopted, (2) when an individual becomes subject to the system, or (3) when a person is injured by the system

The Americans with Disabilities Act of 1990 (ADA

Almost one in five people in the United States have at least one disability, using a broad definition of disability, according to the Centers for Disease Control and Prevention

case law,

Although Congress enacts laws, the courts interpret the laws and determine how they will be enforced. Such interpretations define what is called case law, which serves as a precedent to guide future legal decisions. And, of course, precedents are regularly subject to reinterpretation.

Testing.

n employer may give or act upon any professionally developed ability test. If the results demonstrate adverse impact against a protected group, then the test itself must be shown to be job-related (i.e., valid) for the position in question. The Supreme Court established this standard in Griggs v. Duke Power Co., a case we will discuss later in the chapter.

reverse discrimination

(discrimination against whites and in favor of members of protected groups) is just as unacceptable as is discrimination by whites against members of protected groups The Court emphasized that diversity is a "compelling state interest" but that universities may not use quotas for members of racial or ethnic groups or put them on separate admissions tracks

a prima facie case

(i.e., a body of facts presumed to be true until proved otherwise) She or he belongs to a protected class, such as a racial minority or a qualified individual with a disability. She or he was somehow harmed or disadvantaged (e.g., by not receiving a job offer or a promotion). She or he was qualified to do the job or to perform the job in a satisfactory manner. She or he was treated less favorably than others outside the protected class.

Sexual Harassment*

According to the EEOC, it is "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. according to the courts, for behavior to be treated as sexual harassment, the offender has to know that the behavior is unwelcome. If a person wants to file a grievance, therefore, it is important to be able to prove either that he or she told the perpetrator to back off or that the action was so offensive the harasser should have known it was unwelcome. Sexual harassment is not really about sex. It's about power—more to the point, the abuse of power.71 In the vast majority of cases on this issue, females rather than males have suffered from sexual abuse at work

Bona fide occupational qualifications (BFOQs

Discrimination is permissible when a prohibited factor (e.g., gender) is a bona fide occupational qualification for employment—that is, when it is considered "reasonably necessary to the operation of that particular business or enterprise." Otherwise prohibited discriminatory factors that are exempted from coverage under Title VII of the Civil Rights Act of 1964 when they are considered reasonably necessary to the operation of a particular business or enterprise. llows for an employer to discriminate against employees and potential employees "on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." It is important to note that this exemption from employment discrimination liability does not allow the employer to discriminate on the basis of race

Equal Employment Opportunity Commission (EEOC)

EEOC sets policy and in individual cases determines whether there is "reasonable cause" to believe that unlawful discrimination has occurred. If the EEOC finds reasonable cause, it can sue either on its own behalf or on behalf of a claimant. As far as the employer is concerned, the simplest and least costly procedure is to establish a system to resolve complaints internally. However, if this system fails or if the employer does not make available an avenue for such complaints, an aggrieved individual (or group) can file a formal complaint with the EEOC Once it receives a complaint Page 108 of discrimination (in any given year, it typically receives about 95,000 complaints), the EEOC follows a three-step process: investigation, conciliation, and litigation Again, the EEOC seeks voluntary reconciliation, where the EEOC may serve as mediator. If mediation fails, the EEOC may refer the case to the Justice Department (if the defendant is a public employer) or file suit in federal district court (if the defendant is a private employer The EEOC has issued a number of guidelines for Title VII compliance.54 Among these are guidelines on discrimination because of religion, national origin, gender, and pregnancy; guidelines on affirmative action programs; guidelines on employment tests and selection procedures; and a policy statement on pre-employment inquiries. These guidelines are not laws, although the Supreme Court has indicated that they are entitled to "great deference Information gathering is another major EEOC function, for each organization in the United States with 100 or more employees must file an annual report (EEO-1) detailing the numbers of employees by job category (from laborers to executive/senior-level officials and managers), and then by ethnicity, race, and gender.

Reasonable Accommodation

Employers must make "reasonable accommodations" for job applicants or employees with disabilities (e.g., by restructuring job and training programs, modifying work schedules, or purchasing new equipment that is "user friendly" to sight- or hearing-impaired people).

"Overqualified" Job Applicants

Employers sometimes hesitate to hire an individual who has a great deal of experience for a job that requires few qualifications and may be only an entry-level job. They assume that an overqualified individual will be bored in such a job or is using the job only to get a foot in the door, so that he or she can apply for another job at a later time. Beware of violating the Age Discrimination in Employment Act! An appeals court has ruled that rejection of an older worker because he or she is overqualified may be a pretext to mask the real reason for rejection—the employee's ag

Retaliation

Federal equal employment opportunity (EEO) laws prohibit employers, employment agencies, or unions from punishing applicants or employees for asserting their rights to be free from employment discrimination, including harassment

• *EEO equal employment opportunity

Nondiscriminatory employment practices that ensure evaluation of candidates for jobs in terms of job-related criteria only, and fair and equal treatment of employees on the job. sets of guidelines issued by state and federal regulatory agencies have outlawed discrimination based on race, religion, national origin, age, sex, and physical disability. -Evaluation of candidates for jobs in terms of characteristics that really do make a difference between success and failure (e.g., in selection, promotion, performance appraisal, or layoffs). -Fair and equal treatment of employees on the job (e.g., equal pay for equal work, equal benefits, freedom from sexual harassment).

Quid pro quo harassment (you give me this; I'll give you that)

Sexual harassment—when sexual favors are a condition of gaining or keeping employment. The plaintiff rebuffed her director's repeated sexual overtures. She ignored his advice that sexual intimacy was the path she should take to improve her career opportunities. Subsequently, the director abolished her job. The court of appeals found that sexual cooperation was a condition of her employment, a condition the director did not impose upon males. Therefore, sex discrimination had occurred and the employer was liable.74

Hostile-environment harassment

Verbal or physical conduct that creates an intimidating, hostile, or offensive work environment or interferes with an employee's job performance. Vinson's boss had abused her verbally as well as sexually. However, because Vinson was making good career progress, the district court ruled that the relationship was a voluntary one having nothing to do with her continued employment or advancement. The Supreme Court disagreed, ruling that whether the relationship was "voluntary" was irrelevant. The key question was whether the sexual advances from the supervisor were "unwelcome." If unwelcome, and if they are "sufficiently severe or pervasive to be abusive, This case was groundbreaking Page 115 because it expanded the definition of harassment to include verbal or physical conduct that creates an intimidating, hostile, or offensive work environment or interferes with an employee's job performance. Employers may also be liable for the harassing actions of coworkers or customers, if they fail to take reasonable steps to stop the harassing behavio A statement from the chief executive officer that states firmly that sexual harassment will not be tolerated. A workable definition of sexual harassment that is publicized via staff meetings, bulletin boards, handbooks, and new-employee orientation programs. It should also include concrete examples of inappropriate behaviors (e.g., derogatory comments, demeaning jokes, visual messages, nicknames that refer to a person's membership in any protected group). Create an effective complaint procedure that includes multiple ways to file complaints (supervisor, high-level manager, senior manager, HR representative, or hot line), because the more choices employees have, the less reasonable will be their failure to complain. Every employee must sign a written acknowledgment of receipt of the policy. A clear statement of sanctions for violators and protection for those who make charges. Prompt, confidential investigation of every claim of harassment, no matter how trivial. Preservation of all investigative information, with records of all such complaints kept in a central location. Regular training of all managers and supervisors, including top managers, to model appropriate behavior and to recognize and respond to complaints. Give them written materials that outline their responsibilities and obligations when a complaint is made. Each person needs to sign a written acknowledgment of his or her participation in the training. Follow-up to determine if harassment has stopped.

Unequal (disparate) treatment (type of discrimination)*

an intention to discriminate, including the intention to retaliate against a person who opposes discrimination, has brought charges, or has participated in an investigation or a hearing. There are three major subtheories of discrimination within the disparate-treatment theory: 1) direct evidence of the intention to discriminate. Such cases are proved with direct evidence of other bias based on an open expression of hatred, disrespect, or inequality, knowingly directed against members of a particular group; or blanket exclusionary policies, such as exclusion of an individual whose disability (an inability to walk) has nothing to do with the requirements of the job she is applying for (financial analyst). 2) circumstantial evidence of the intention to discriminate (see the McDonnell Douglas v. Green test, p. 100), including those that rely on statistical evidence as a method of circumstantially proving the intention to discriminate systematically against classes of individuals. 3) Mixed-motive cases (a hybrid theory) that often rely on both direct Page 96 evidence of the intention to discriminate on some impermissible basis (e.g., gender, race, disability) and proof that the employer's stated legitimate basis for its employment decision is actually just a pretext for illegal discriminatiom

discrimination*

it can be viewed broadly as the giving of an unfair advantage (or disadvantage) to the members of a particular group in comparison with the members of other groups.2 The disadvantage usually results in a denial or restriction of employment opportunities or in an inequality in the terms or benefits of employment. Selection implies exclusion. And as long as the exclusion is based on what can be demonstrated to be job-related criteria, that kind of discrimination is entirely proper. It is only when candidates are excluded on a prohibited basis, one that is not related to the job (e.g., age, race, gender), that unlawful and unfair discrimination exists

Adverse-impact (unintentional) discrimination*

occurs when identical standards or procedures are applied to everyone, despite the fact that they lead to a substantial difference in employment outcomes (e.g., selection, promotion, layoffs) for the members of a particular group, and they are unrelated to success on a job. For example, suppose that use of a minimum height requirement of 5 feet 8 inches for police cadets has an adverse impact on Asians, Hispanics, and women. The policy is neutral on its face but has an adverse impact. To use it, an employer needs to show that the height requirement is necessary to perform the job.

Disability

s a physical or mental impairment that substantially limits one or more major life activities, such as walking, talking, seeing, hearing, or learning. People are protected if they currently have an impairment and have a record of such impairment, or if the employer Page 105 thinks they have an impairment (e.g., a person with diabetes under control).31 Rehabilitated drug and alcohol abusers are protected, but current drug abusers may be fired. Alcoholics, in contrast, are covered and must be reasonably accommodated by being given a firm choice to rehabilitate themselves or face career-threatening consequences.32 The law also protects people who have tested positive for HIV/AIDS. Alongside long-recognized impairments such as blindness, the list now includes conditions such as cancer, diabetes, major depression, and epilepsy

Sex Discrimination*

the Supreme Court ruled unambiguously that in traditionally sex-segregated jobs, a qualified woman can be promoted Page 112 over a marginally better-qualified man to promote more balanced representation. The Court stressed the need for affirmative action plans (actions appropriate to overcome the effects of past or present policies, practices, or other barriers to equal employment opportunity) to be flexible, gradual, and limited in their effect on whites and men. The Court also expressed disapproval of strict numerical quotas except where necessary (on a temporary basis) to remedy severe past discrimination.