CHP 16 LAW

Lewis v. Heartland Inns of America, L.L.C.

**There was sex discrimination didn't meant sex stereotypes and she retaliated two theories she won on Brenda Lewis began working for Heartland Inns in July 2005. Successfully filled several positions. Was promoted; received two merit pay increases; mangers praised her work and the "good impression" she made on customers. Shortly after promoted in December 2006, Director of Operations, Barbara Cullinan, saw Lewis for the first time. Told Lewis's supervisor she didn't think Lewis was a "good fit" for front desk - lacked "Midwestern girl look." Said front desk girl should be "pretty" and Lewis was not. January 2007, Lewis's supervisor refused to remove Lewis from front desk. That supervisor was fired. Cullinan then met with Lewis to interview her for position she already held, and told here there must be a 2nd interview - never happened. Lewis was fired. Lewis sued for violation of Title VII. Contended she was terminated for not conforming to sex stereotypes & in retaliation for opposing discriminatory practices. District court granted summary judgment for Heartland Inns. Lewis appealed. HELD: Reversed and remanded for further proceedings. Lewis presented sufficient evidence to make a prima facie case on her claims for sex discrimination and retaliation. S. Ct. has said that cases of sex discrimination do not compel a women to prove that men were not subjected to same challenged discriminatory conduct For instance: "employer who discriminates against a women because they won't wear dresses, or make-up, engages in sex discrimination, because it has to do with victim's sex." Heartland procured video equipment so Cullinan could inspect a front desk applicant "look" before any hiring. Termination letter to Lewis relied on January 23 meeting with Cullinan. Later then Heartland alleged poor job performance to justify the termination. Heartland did not follow its own written termination procedure - conducting investigation, looking at previous disciplinary record (Lewis had none), etc. Ample evidence to support Lewis's claims.

Statutory Defenses Under Title VII

*Business necessity:* If employment practices can be shown to discriminate against some employees, the burden is on the employer to prove that the challenged practices are justified as a business necessity and are job related -Business necessity is evaluated with reference to the ability of the employee to perform a certain job ex: physical requirements/lifting boxes?; flight attendants must be certain heights? *Professionally Developed Ability Tests:* -Must predict work ability required for the job; employers often required to supply statistical validation of the tests *Bona Fide Seniority or Merit System:* -seniority is the length of time an employee has been with an employer and determines length of vacations, security from layoffs, preference for promotion, and amount of sick leave *BFOQ: Bona Fide Occupational Qualifications:* discrimination is permitted in instances in which sex, religion, or national origin (but not race) is a BFOQ "reasonably necessary to the normal operation of that particular business". -Only female guards at women's prisons? -Male models for female clothing? --will lose! *Early Retirement Plans (which encourage voluntary early retirement)

Quid pro quo

-"this for that", where there is a promise of reward-such as promotion or pay raise-for providing sexual favors -or there is a threat of punishment for not going along with sexual requests -unwelcome sexual advances -requests for sexual favors -Purpose: to promote, change condition of employment, salary, place on project, etc -Submission is the basis for the employment decision

Possibility of Retaliation for Expression of Rights

-*Retaliation*: if employee is punished for making a complaint about discrimination -violation of a protected right -This occurs in about 1/3 of discrimination complaints that are filed

Level of Disability

-ADA cases involve individual evaluation of circumstances of what constitutes a disability in relationship to particular employment -disabilities are major life conditions -if a person is partially impaired, need not mean the person is considered disabled; tough standard to meet -for those disabled, employers need only to make a reasonable accommodation -Employers need not retain employees who can no longer perform their jobs ex: a dock worker was over 400 lbs; morbid obesity is not an impairment. he couldn't go up and down ladders or perform the job.

1967 Age Discrimination In Employment Act (ADEA)

-About 23% of discrimination claims are in this category -Prohibits discrimination in persons over 40 -All employers with 20+ employees must comply -Applies to hiring, promoting, terminating -CANNOT: -force retirement -require older works to pass physical exam as a condition of continued employment (unless it is necessary for job performance) -indicate age preference in advertising (ex: Young, dynamic person wanted) -Choose a younger worker because an older one will retire soon -Cut health-care benefits for workers over 65 because they are eligible for Medicare -ex: newly graduated bright and energetic needed=discrimination

Bringing a Discrimination Charge

-Amended by Lily Ledbetter Fair Pay Act of 2009 -First step: Must file with a state or federal EEOC Office -Under federal law, within 180 (states usually extend to 300) days of alleged discrimination -Sometimes state laws have further requirements -Dubious claims can be dismissed -EEOC then notifies the employer of the case and investigates the claim -EEOC agent hears both parties' sides of the incident -If no settlement, the EEOC informs the parties of the result of the investigation -If the EEOC finds merit with the complaint, it issues a right-to-sue letter to the employee (in order to bring the action in federal court) -Sometimes the EEOC will sue an employer -100,000 complaints per year

EEOC Impact on Global Operations

-American firms have operations in other countries -Foreign firms have operations in the US -Americans work for American firms--stationed in other countries -Foreign citizens work for American firms in US and other countries -EEO Law of US much tougher than in most nations -Generally, US law applies to anyone working for a company in the US -Also applies to US citizens working for US companies in other countries -EEO DOES NOT apply to non-US citizens working for US companies in other countries

"Jurisprudence? A New Protected Class?"

-Curt Storey, resident of PA, sued Burns International Security Services for wrongful discharge -Claimed he was fired for refusing to remove Confederate flags from his lunch box and pickup truck -Claimed protection to display because he is a "Confederate Southern American" -HELD: Title VII does not recognize loyalty to Confederacy as a protected class

"Burlington Industries, Inc. vs. Ellerth

-Ellerth worked for 15 months in sales for Burlington. She claimed that Slovik, a manager, made sexually offensive remarks, asked for liberties, & made threats to deny her of job benefits. She refused his advances. There was no retaliation against her. She never told anyone about the problem until lawsuit was filed. District Court granted summary judgment for Burlington. Appeals Court reversed. Burlington appealed. HELD: Reversed & case remanded back to District Court. Ellerth focused her lawsuit on quid pro quo claims. The District Court may decide if it is appropriate to allow Ellerth to amend her pleading to claims of a hostile work environment. ER may then raise defense that includes *1) That Employer exercised reasonable care to prevent or correct harassing behavior and *2) The Employee unreasonably failed to take advantage of those opportunities or to avoid harm. *Not a quid pro quo b/c she did not submit not a this for that This is a hostile work environment *she's in trouble in lawsuit she told no one you have to be forward you have to be strong will most likely lose the case *

Examples of Religion discrimination

-Employer has strict dress code to give company a certain "look" -Code need not be modified to allow certain employees to wear religious garb, such as headdress, or unshaven as a religious requirement --However, if an employer does not have a strict code, then cannot tell an employee NOT to wear religious garb -There are exceptions in extreme situations and/or for safety reasons -Employer need not make other employees change their work schedule to accommodate the religious holiday preferences of an employee -BUT, if accommodations can be made at no cost, giving opportunity of employees to switch work days, then only minimal cost is incurred

Key Defense for Employers

-Employer should have a clear, effective policy and procedures to reduce the likelihood of discrimination cases -Without policies, an employer may have a more difficult defense -If manager is involved with wrongful termination, employer may be liable under vicarious liability -Employer must have effective procedure to allow employees to make complaints about perceived discrimination -Greater likelihood of punitive damages imposed on employer if lack of good-faith efforts to prevent discrimination

Genetic Information Discrimination

-Genetic Information Nondiscrimination Act (GINA of 2009) -Illegal to discriminate in employment based on genetic information -Genetic tests or those of a person's family member (including medical history) -May not be obtained by employer -May not be used in any way in reply to suitability for employment -Illegal for person to suffer harassment or retaliation -EEOC enforces statute -Same procedure as for Title VII

Questions that are Illegal During a Job Interview

-Have you ever been treated for mental health problems? -Have you ever filed for workers' compensation benefits? -Do you have a disability that would interfere with your ability to perform the job? -How many sick days were you out last year? Have you ever been unable to handle work-related stress? Have you ever been treated for drug addiction or drug abuse? Past addiction is a disability; current use of illegal drugs are not. Current alcoholism is protected disability - applicant may not be asked re: drinking habits (can ask if person has been arrested for DUI). Other Questions: Can you ask? Age? No Computer skills if applicant won't use them? No Married? Children? No Sexual Preference? No Been in therapy? No *"Are you able to handle the 'rigors' of this job. The word "rigors" seems to be allowed in questions asked of applicants.*

Historical Movement to the Present Laws

-Historically, employers could discriminate on race, sex, or other personal characteristics -Jim Crow laws supported segregation & labor market discrimination -National Civil Rights Movements in the 1960s began the change

Forms of Discrimination

-Imposing *differential standards* on employees -Illegal *compensation differentials* -*Harassment*: involves making life miserable for an employee may result in *constructive discharge*: an employee quits because of harassment --to recover for illegal discrimination: -*Disparate treatment*: plaintiff must prove that the employer intentionally discriminated; the employer treated them differently because of a personal characteristics -*Disparate impact/adverse impact* (unintentional discrimination but the EFFECT is discriminatory. Proof of intent not required)

Oncale v. Sundowner Offshore Services, Inc.

-Male-on-male sexual harassment -Male worker sued his employer -Suffered verbal and physical abuse of sexual nature, by other male workers -HELD: Same-sex harassment is prohibited -Prohibition of sexual harassment is not based on asexuality or androgyny in the workplace -Title VII forbids behavior so offensive as to "altar the conditions of the victims employment" -Distinguish between simple teasing or roughhousing vs. conduct that is severely hostile or abusive -Court says use common sense -Use sensitivity -Courts use the "reasonable person" standard: Would "a reasonable person in the plaintiff's position..." find the behavior "severely hostile or abusive?" --rough housing and teasing are NOT illegal

Title VII (continued)

-May bring an action for more than one type of discrimination affecting an individual through certain actions by employers -Many states have their own civil rights acts modeled on Title VII; some states prohibit discrimination based on sexual orientation -Some cities also have civil rights laws extending to discrimination coverage; Prohibition against discrimination based on sexual orientation; San Francisco prohibits employment discrimination based on height or weight

Sexual Harassment under Title VII

-Quid pro quo -Hostile environment

Harris v. Forklift Systems

-Teresa Harris is a rental manager; her boss, Charles Hardy, insults her in front of others -She is a target of sexual suggestions -"You're a woman, what do you know?" -Called her a "******** woman" -"Go to the Holiday Inn to negotiate her raise" -What did you do, promise the guy sex Saturday night?" -Hardy asks women to get coins from his front pants pockets -Harris quits and sues claiming a "hostile work environment" -Lower court: say there is no sexual harassment -US Supreme Court REVERSES: "Employee's psychological well-being is relevant to determine if the environment is abusive and has a discouraging effect on the employee's staying on the job" -Hostile work environment b/c he never touched her -Construction discharge=self discharge b/c of what they are doing to do you

Pre-employment Guidance

-The EEOC has issued *ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations* -ADA prohibits employers asking disability-related questions or requiring medical exams before a job is offered -What you may and may not ask of applicants must relate to the job -If disability is obvious or applicant volunteers information, questions may be asked about reasonable accommodations -Once a job offer is made, an employer may ask 1) for documentation of a disability and 2) more questions about reasonable accommodations -If physical exam is given to new employees, similar exams must be given to all employees in same job category -Results must be kept confidential -Exams must be related to ability to do the job-not to screen out employees with potential health problems -When applicant is qualified for employment, may need a professional assessment of limitations and accommodations

"Employment Discrimination In Europe And Japan"

-These countries are behind the US in treatment of women and minorities -Europe: Employees can be forced to retire between the ages of 55 and 65 -Japan: First sexual harassment case in 1992; remedy was for only $12,500 plus an apology, but considered a landmark case -Europe: Immigrants treated as 2nd-class citizens; immigrants in France face blatant discrimination in job market -Japan: Women traditionally have been kept out of higher-level jobs and are not always paid as much for equal work -Both: Generous maternity benefits encourage employers not to hire women because of high costs of such benefits

Remedies in Discrimination Cases

-Title VII gives the courts leeway with damages and remedies that may be imposed when discrimination is found; the focus is try to put the plaintiffs in the position they would have held but for the discrimination -Actual and compensatory damages -Equitable remedies, Injunction *Back pay:* to the date discrimination began, either the entire pay that would've been earned or the difference between pay received and what should have been received; generally, employees must mitigate damages by seeking other work *Front pay:* if an employee was unlawfully fired, he may be ordered reinstated or the plaintiff may be ordered to be hired if she was improperly not hired; but often this is not realistic, so the plaintiff is given a sum (front pay) to compensate longer-term damage to a career for not having gained the experience *Compensatory damages:* for emotional distress, medical expenses, job-hunting costs, and loss of reputation *Punitive damages:* may be granted to punish the employer for wrongdoing because the employer acted with malice or in reckless disregard for protected rights; capped from $50,000 to $300,000 depending on firm size) *Attorney's fees:* may be recovered, as well as costs such as filing fees, expert witness fees, and transcripts.

Effective Company Policy

-To claim that employee failed to take advantage of in-house protections against discrimination & harassment; firm must have credible program in place -Knowledgeable person or staff in place to hear complaints -Process is secure and separate from normal internal communication changes -Employees believe program is trustworthy -To further reduce sexual harassment claims: some companies have policies against romances b/w employees; What starts as consensual may end badly; result: Claim of harassment

Discrimination based on Military Service

-Uniformed Services Employment and Reemployment Rights Act of 1994 -Based on persons obligation to perform service..it is illegal for employer to deny employment or reemployment or anything of employment -it is illegal to deny position to someone when they come back from war and want job back/or to continue -Straub v. Proctor Hospital: -Hostility to a member of the military was improper and is a tort under federal law -Is a form of discrimination that does not follow EEOC process

Violations by Employers

-Using standardized employment tests that screen out people with disabilities Refusing to hire applicants due to history of alcohol abuse rather than currently alcohol abusers Rejecting a job applicant because he/she is HIV-positive Asking job applicants if they have disabilities, rather than asking if have ability to perform the job Limiting advancement opportunities for employees due to their disabilities Not hiring a person with a disability because the workplace does not have a bathroom to accommodate wheelchairs

"Your E-mail is Your Boss's E-mail"

-Usually email sent on company computers are available for company inspection -CASE: -Sports writer for Chicago newspaper was told to quit sending unwanted email to female coworker -He didn't stop -Employer transferred him to write to another department -Federal Court HELD: Paper was within its rights; Employee cannot complain about interference with his email; cannot claim sex discrimination; employer "was obviously trying to make the best of a difficult situation" -Employer is not liable CASE: -Chevron paid $2.2 million to settle sexual harassment claims of women in reply to dirty jokes transmitted around the office

Affirmative Action Programs

-a deliberate effort by an employer to remedy discriminatory practices in the hiring, training, and promotion of protected class members when a particular class is underrepresented in the employer's workforce -To correct underrepresentation -Adopted ONLY on race or sex (not color, religion, national origin or age) -Programs are monitored and enforced by the Office of Federal Contract Compliance Programs in Dept. of Labor -Courts may require affirmative action as a remedy in discrimination cases -Pres. Johnsons Executive Order 11246 in 1965: government contractors must adopt affirmative action -$50,000 in federal contracts and 50 or more employees have to have written affirmative action program -*workforce analysis*: for each job in the organization -*Under-utilization analysis:* Comparing % of minorities & women in community in each job category with % employed by contractor

Hostile environment

-created at work by others (can exist b/c of race or other characteristics) -Discussing sexual activities -Commenting on physical attributes -Unnecessary touching or gestures; crude, demeaning, offensive language -Displaying sexually suggestive pictures -Trivial, isolated incidences usually do not qualify as harassment

1972 Equal Employment Opportunity Act

-created the Equal Employment Opportunity Commission -EEOC established to enforce all Acts

Affirmative Action Program

-designed to remedy past discriminatory practices

1978 Pregnancy Discrimination Act

-employer may not discriminate against women because of pregnancy, childbirth, or related medical conditions -Women must be treated the same for all purposes including fringe benefit programs EX: -Denying a woman a job, assignment, or promotion b/c she is pregnant or has children -Requiring a pregnant woman to go on leave, when she can still do her job -Treating maternity differently than other leaves for temporary disabilities -**Discriminating: fringe benefits, such as health insurance, that discourages women of childbearing age from working

Reasonable accommodations (ask meg)

-employers are obliged to make reasonable accommodations for persons with disabilities and are expected to incur expenses in making a position or workstation available to qualified disabled applicants and employees. -BUT need not take on an "undue hardship" -Make existing facilities accessible -Job restructuring (if no undue hardship) -Part-time or modified work schedules -Acquiring or modifying equipment (if reasonable expense) -Changing tests, training materials, or policies -Providing qualified readers or interpreters -Reassignment to a vacant position (if person is qualified)

1963 Equal Pay Act

-first federal law to address employment discrimination -it is illegal to pay men and women employees different wages when their jobs require equal skill, effort, responsibility, and the same working conditions **point of it was make it equal female wages with male wages

1991 Civil Rights Act

-majority of discrimination suits are brought under this which is larger in scope and has more remedies

Reverse discrimination

-preferential treatment to members of a protected class is also illegal -but if minorities like women are underrepresented in a job category it is legal -ex: Mcdonald v. Santa Fe Trail: African American employee reprimanded, but kept job; the white employee was fired. HELD: Illegal under Title VII

Title VII of the Civil Rights Act of 1964

-the most important antidiscrimination employment law is Title VII of the Civil Rights Act of 1964 -Title VII makes it illegal for an employer of 15 or more workers are subject to law *-Protected classes:* forbids discrimination in all aspects of employment on the basis of race, color, religion, sex, or national origin. *-Race:* Black or African American; White; American Indian or Alaska Native; Native Hawaiian or other Pacific Islander; and Asian *-Color:* Shade of skin *-Religion:* the employer is required to provide reasonable accommodation for an employee's religious practices; the employer may discriminate, however, if the accommodation imposes undue hardship on the conduct of business ex: if employer has a strict dress code with a certain "look", does not need to be modified for religious garb; BUT if not strict dress code, cannot tell them they can't wear it *Sex:* does not apply to sexual preference or identity! just on basis of whether person is male or female *National Origin:* May be discriminatory unless for reasons of safety, productivity or legitimate job requirement; ex: discriminatory to require English spoken at all times ***-Discrimination in employment still exists-not as overt-more subtle

American Disabilities Act considers mental disabilities..

Also mental conditions, such as ADD, ADHD, anxiety disorders, obsessive-compulsive conditions, depressive disorders, narcolepsy, etc. are considered "disabilities" under the EEOC regulations. ➢ Pay close attention to fear of heights NOT being a disability under the ADA.

"Wicked Witch of the East?"

Carole Smith is Wiccan. Worked for TSA at the Albany airport for 7 months. Supervisor told her that he was investigating a workplace violence claim. Another employee accused Smith of casting spells on her. For example, one day the heater in her car did not work. What else could have caused it except a spell by Smith? Smith was rated in the tope 10% of detecting contraband carried by passengers. Complained about harassment by numerous employees because of her beliefs. TSA packed her record with negative comments and fired her. **THIS IS DISCRIMINATORY BC WICCAN IS CONSIDERED RELIGIOUS BELIEF**

"Modify Your Body In Private?"

Cloutier worked for Costco for 4 years. Kept adding to her collection of body piercings, tattoos, cuttings and scars. Card-carrying member of the Church of Body Modification (can get application on (www.uscobm.com). Costco's dress code requires personal decorations to be covered or removed. Cloutier refused to hide or remove new facial piercings Was fired. EEOC tried to negotiate a compromise, but Cloutier refused to cover the piercings. She sued Costco for $2 million, claiming religious discrimination. Federal Court held: It presumed her religious beliefs were sincere. However, Costco has the right to a dress code or dress enviornment so that customers see workers as "reasonably professional in appearance." **dress code so outrageous no one wants to work with her can't stand to be around Even w/o a dress code that means they aren't even properly doing their job She lost

Keith vs. Country of Oakland

Nicholas Keith has been deaf since birth; cannot speak verbally but can communicate using American Sign Language (ASL). Took and passed all portions of Oakland county's lifeguard training Applied for employment as lifeguard. Head of hiring, Stavale, approved his employment subject to accommodation that Keith requested Presence of an ASL interpreter at staff and instructional meetings Keith passed a physical exam, but physician said Keith would require constant accommodation. Matters delayed - consultant was called Consultant was dubious about Keith's ability to perform. But had no experience regard ability of deaf people to work as lifeguards Stavale was sure Keith could do the job. Set out elaborate plan of accommodation Consultant was concerned the plan might not work. Offer of employment was withdrawn. Keith sued for disability discrimination. Trial Court: Summary judgment to County. Keith appealed. HELD: Reversed and remanded Keith is disabled under the ADA. Issues: Whether Oakland County made an individualized inquiry Whether Keith is otherwise "qualified for the position with or without reasonable accommodation" Whether Oakland County engaged in interactive process People with disabilities "ought to be judged on basis of their abilities . . . not judged . . . based on unfounded fear, prejudice, ignorance or mythologies . . . ." ADA requires employers to make decisions that are NOT based on stereotypes & generalizations. There is evidence that jury could find he can communicate effectively despite his deafness. He can adhere to 10/20 standard of zone protection - scanning technique Scan in 10 seconds; reach a part of their zone in 20 seconds Ability to hear is unnecessary to perform essential lifeguard functions. He is "otherwise qualified" to perform the job. World record for most lives saved (900) - Leroy Colombo -- a deaf man

"Get the Women Out of My Classes"

Winston (teacher) was fired over sexual misconduct. He kissed an 18-year-old female student "after a sexually suggestive conversation." Winston sues the school, claiming he had a "mental handicap of sexual addiction." Expert witness testified he had this disorder, which had led to seeking services of prostitutes and was a permanent condition. Held: Complaint dismissed. ADA excludes "sexual behavior disorders" from the term disability. **This is in fact a bona fide addiction and a difficult one to treat according to psychologists. However, note the ADA excludes "sexual behavior disorders" from the term "disability" for fear that those who sexually harass will use this as an excuse for their harassment.**

EEOC v. Dial Corp.

Workers at Dial plant needed to lift 35 lbs. of sausage at a time to a height from 30 to 60 inches. Doing this over and over meant injuries to some workers. Company began a Work Tolerance Screen (WTS) test for potential employees. Candidates had to demonstrate strength ability. Usual work force was ½ men and ½ women. After WTS introduced, number of women hired dropped to 15%. One applicant took test, passed it, but wasn't hired. She complained to EEOC. EEOC brought suit on behalf of 54 women who applied at Dial and were rejected despite passing WTS. Trial Court said Dial did not demonstrate that WTS was a business necessity. Awarded back pay to women ranging from $920 to $120,000. Dial appealed. **Unintentional but discriminatory act ** HELD: Affirmed. Expert testimony indicated that WTS was more difficult than the sausage-lifting jobs. In WTS, the applicants had to perform 4x as many lifts as the current employees were doing and had no rest breaks. Dial claimed WTS resulted in decreased injuries. HOWEVER, sausage plant injuries started decreasing before WTS was implemented. AND the injury rate for women employees was lower than that for men in 2 of the 3 years BEFORE Dial implemented the WTS. Defense did not prove that WTS was related to the specific job and the required skills and physical requirements of the position. **Disparate impact tolerance screen test was inappropriate not a good ability to see if they were fit for the workforce **

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