MGMT chpt 21

equal protection issues

- Affirmative action programs may violate Fourteenth Amendment because of their inherently discriminatory nature. - A program is constitutional only if it attempts to remedy past discrimination and does not use quotas or preferences. - Once a program has succeeded in remedying past discrimination, it must be changed or eliminated.

reasonable accommodations

ADA does not require that employers accommodate the needs of job applicants or employees with disabilities who are not otherwise qualified for the work. but if with reasonable accommodation can perform essential job functions, the employer must make the accommodation may include, installing ramps for a wheelchair, flexible working hours, improving training materials.

Disclosure of confidential medical info

ADA provision require employers to keep their employees medical info confidential. and employee who discovers that an employer has disclosed their confidential medical information has a right to sue the employer even if the individual was not disabled

Equal employment opportunity commission (EEOC)

Monitors compliance with Title VII. an employee alleging discrimination must file a claim with the EEOC before a lawsuit can be brought against the employer. the EEOC can then investigate the dispute and attempt to obtain the parties voluntary consent to an out of court settlement. if that cant be reached the EEOC may file a suit against the employer on the employees behalf. EEOC does not investigate every claim of employment discrimination. usually only take "priority cases, such as cases involving retaliatory discharge (firing a employee in retaliation for submitting a claim to the EEOC) and case involving discrimination that are of particular concern to the EEOC. if EEOC decides not to investigate the claim, they issue a "right to sue" that allows the employee to bring his or her own lawsuit against the employer

discrimination based on disability

The americans disability act (ADA) prohibits disability based discrimination in all workplaces with 15 or more workers. an exception is state gov employers, who are generally immune by the 11th amendment. ADA requires employer to "reasonably accommodate" the needs of person with disabilities unless it would cause the employer to suffer a "Undue hardship"

Procedures under the ADEA

The burden shifting procedure under ADEA differs from the procedure under title VII. Under ADEA, a plaintiff must show the unlawful discrimination was not just a reason but THE reason for the adverse employment action. the employee has the burden of establishing but for causation, "but for" the employees age

discrimination based on military status

The uniformed services employment and reemployment rights act (USERRA) prohibits discrimination against persons who have served in the military. makes it a protected class

same gender harassment

Title VII extends to individuals sexually harassed by members of same gender

borad applications and provisions

USERRA covers all employers. even a employer with only 1 employee. also applies to us employers operating in foreign countries no statute of limitations, everyone could be held liable veterans can be terminated from their employment only for cause.

rate of hiring

a plaintiff can also prove disparate-impact discriminations by comparing the employers selection rates of member and nonmembers of a protected class (nonwhite and whites, men and women) when educational or other job requirement or hiring procedure excludes member of a protected class at a higher rate of nonmember, discrimination occurs. under EEOC selection rate for protected class is less than 4/5 of 80% of the rate for the group with the highest rate of hiring generally is regarded as evidence

pool of applicants

a plaintiff can prove a disparate impact by comparing the employers workforce to the pool of qualified individuals available in the local market. the plaintiff must show 1. as a result of educational or other job requirements or hiring procedures 2. the percentage of nonwhites, women, or members of other protected classes in the employers workforce 3. does not reflect the percentage of that group in the pool of qualified applicants if the plaintiff can show a connection between the practice and the disparity, he or she has made out a prima facie case and need not provide evidence of discriminatory intent

association with disabled persons

a separate provision in the ADA prevents employers from taking adverse employment actions based on stereotypes or assumptions about individuals who associate with people who have disabilities. an employee cannot refuse to hire the parent of a child with a disability based on the assumption that the person will miss work too often

discrimination based on age

ages discrimination is potentially the most widespread form of discrimination - because anyone could be a victim at some point. The age discrimination in employment act (ADEA) prohibits employment discrimination on the basis of age against individuals forty years or age or older. the act also prohibits mandatory retirement for non managerial workers. it also protects federal and private sector employees from retaliation based on age related complaints. for the act to apply, the employer must have 20 or more employees and the business activities must affect interstate commerce. EEOC adminsters the ADEA, but the act also permits pprivate causes

intentional discrimination

by an employer to a employee is known as disparate-treatment discrimination. because intent may sometimes be difficult to prove, courts have established certain procedures for resolving these cases. A plaintiff who sues on the basis of disparate-treatment discrimination must first make out a prima facie case, refers to the fact that is presumed to be true unless contradicted by evidence

replacing older workers with younger workers

cases in such employers to cut cost, replaced older higher paid employees with younger low salary workers. is this discriminatory or simply party of a rational business decision. plaintiff must prove that the discharge was motivated by age bias. they do not need to prove that she or her was replaced by a person outside of the protected class. the replacement worker only need to be younger then the plaintiff.

protected class

class of a person defined by one of more of these criteria - race, color, religion, national origin, gender, age, and disability

reverse discrimination

discrimination against members of the majority group, such as white males

substance abusers

drug addiction is considered a disability under ADA because it is substantially limiting impairment. does not protect people who are using illegal drugs. ADA only protects people with former drug addictions, those who has completed or are not completing supervised drug rehab programs. they have to have or had a addiction. Alcoholism is also protect by the ADA. employees can fire or refuse to hire a person who is an alcoholic if: 1. the person poses a substantial risk of harm to himself or other 2. the risk cannot be reduced by accommodation

online harassment

employees online activities can create a hostile working environment in many ways. racial jokes, ethnic slurs, other comments, a employee who sees sexual explicit pictures on a co workers screen can say the images are offensive. employers can avoid liability for online harassment by taking prompt remedial action

Ellerth/Faragher Affirmative Defense

employer have a defense if: 1. the employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior 2. the plaintiff-employee must have unreasonably failed to take advantage of preventive opportunities provided by the employer to avoid harm

remedies under title VII

employer liability can be extensive. if the plaintiff successfully proves discrimination, she or she may be awarded reinstatement, back pay, retroactive promotions, and damages. limits apply to damages. compensatory damages are available only in cases of intentional discrimination. punitive damages may be recovered against a private employer only if the employer acted with malice or reckless indifference to a individuals rights

business necessity

employer may defend against a claim of disparate impact (unintentional) by exerting the practice is a business necessity

post pregnancy discrimination

employer must continue to reasonably accommodate an employees medical condition related to pregnancy and childbirth, even after the pregnancy has ended

seniority systems

employer with a history of discrimination may have not members of a protected classes in upper-level positions. defense could be if the promotions or other job benefits have been distributed according to a fair seniority system. workers with more years of service are promoted first or laid off last

discrimination based on gender

employers are prohibited from classifying jobs based on gender, unless employer can prove gender is essential to the job. they can't have separate male and female seniority list and cannot refuse to promote employees based on their gender

discrimination based on religion

employers cannot treat their employees more or less favorable based on their religious beliefs or practices, they also cant require employees to participate in religious activities or forbid them from participating in one reasonable accommodation: a employers must reasonable accommodate the religious practices and beliefs of its employees unless to do so would cause undue hardship to the employers business. ex: religion requiring someone to not work a certain days of the week undue hardship: a reasonable attempt to accommodate does not require the employer to make every change an employee request, they are not require to make a accommodation that would cause the employer undue hardship

unintentional discrimination

employers often use interview test to choose from among a large number of applicants for job openings. minimum education requirements are also required. these practices and procedures may have had a unintended discriminatory impact on a protected class. Disparate-impact discrimination occurs when a protected group of people is adversely affected by an employers practices, procedure, or test even though they do to appear to be discriminatory complaining party must first show the employers practices are effectively discriminatory. once the plaintiff has made out a prima facie case, the burden of proof shifts to the employer to show that the burden of proof shifts to the employer to show that the practices or procedures in question were justified two ways of showing the practices are discriminatory

undue hardship

employers who do not accommodate the needs or person with disabilities must demonstrate that the accommodation would cause undue hardship. significantly difficult or expensive. case by case

after acquired evidence of employee misconduct

evidence that the employers discovers after the lawsuit has been filed. cant shield but can limit liability

affirmative action

federal statutes and regulation providing for equal opportunity in the workplace were designed to reduce or eliminate discriminatory practices affirmative action programs go a step further in attempt to make up for past patterns of discrimination by giving members of protected classes preferential treatment in hiring or promotions

defenses to employment discrimination

first line of defense is to assert that the plaintiff has failed to meet their initial burden that discrimination occurred. age discrimination is hard to meet this initial burden. once a plaintiff succeeds in proving this the burden shifts to the employer. possible justifications include business necessity, bona fide occupational qualification, or a seniority system.

harassment by supervisors

for an employer to be held liable for a supervisors sexual harassment, the supervisor must have taken a tangible employment action against the employee. tangible employment action - a significant change in employment status or benefit. such action occurs when an employee is fired, refused a promotion, demoted or reassigned. only a supervisor can cause this sort of harm. constructive discharge also qualifies as a tangible employment action.

pretext

if the employer offers a legitimate reason for its action, then the plaintiff mist show that the stated reason is only a pretext

constructive discharge

occurs when the employer causes the employees working conditions to be so intolerable that a reasonable person in the employees position would feel compelled to quit. when this is claimed the employee can pursue damages for loss of income, including back pay. these damages ordinarily are not available to an employee who left a job voluntarily. these damages ordinarily are not available to an employee who left a job voluntarily

burden-shifting procedure

once the prima facie case is established, the burden then shifts to the employer-defendant, who must articulate a legal reason for not hiring the plaintiff. if the employer did not have legal reason for taking the action, the plaintiff wins if the employer can articulate a legitimate reason for the action, the burden shifts back to the plaintiff. to prevail, the plaintiff must then show that the employers reason is a pretext (not true) and the employer decision was actually motivated by discriminatory intent

Prima facie age discrimination

plaintiff must show: 1. a member of the protected age group 2. qualified for the position from which she or he was discharged 3. discharged because of age discrimination then the burden shifts to the employers to give a legitimate nondiscriminatory reason for adverse action

establishing a prima facie case

plaintiff must show: 1. the plaintiff is a member of a protected class 2. the plaintiff applied and was qualified for the job in question 3. the plaintiff was rejected by the employers 4. the employer continued to seek applicant for the position or filled the position with a person not in a protected class a plaintiff who can meet these requirements has made out a prima facie case of illegal discrimination in hiring and will win the absence of a legally acceptable employer defense

Title VII of the Civil Rights Act

prohibits both intentional and unintentional discrimination

Title VII of the civil rights act

prohibits employment discrimination on the basis of race, color, religion, national orgin, and gender the age discrimination in employment - prohibits discrimination on the basis of age and disability

Title VII of the civil rights act

prohibits job discrimination against employees, applicant, and union members on the basis of race, color, national orin, religion and gender at any stage of employment. bans discrimination in the hiring process, discipline procedures, discharge, promotion, and benefits. this title applies to employers with 15 or more employees and labor union with 15 or more members. an employer with fewer than 15 employees is not automatically shielded from a lawsuit. prohibits discrimination in most federal government employment. when it applies to the employer and employee - including a undocumented workers - can bring action for employment discrimination

discrimination based on race, color, and national origin

race in interpreted broadly to apply the ancestry or ethnic characteristics of a group of person such as native americans. national origin refers to discrimination based on a person birth in another country or his or her ancestry or culture, such a hispanic if a employers standards for selecting have a discriminatory effect on employees or job applicants in these protected classes, then a presumption of illegal discrimination arises. to avoid liability the employers must show that its standard have substantial demonstrable relationship to realistic qualification for the job

bona fide occupational qualification (BFOQ)

race, color, and national origin can never be BFOQ. This is situations in which a employees gender or religion is essential to the job. women's clothing store might only hire females sales attendants job that involves assisting clients in dressing rooms

potential section 1981 claims

racial or ethinic discrimination may also have cause of action under section 1981. this protects rights of freed slaves and prohibits discrimination on the basis of race or ethnicity

retaliation by employers

retaliation against employees who complain about sexual harassment. such as demote or fire the person, otherwise change the terms, conditions, and benefits of employment. title VII prohibits retaliation and employees can sue their employers when this happens. in a retaliation claim an individual asserts that she or he has suffered harm as a result of making a charge, testifying or participating in a title VII investigation

plaintiffs may be entitles to promotions

returning service members are to be reemployed in the job that they would've attained has they not been absent for military service. reinstatement could affect their seniority, status, pay and other benefits. if a returning member sues an employers for violation, they could receive damages and reinstatement but also a promotion

state laws prohibiting affirmation

some states have enacted laws that prohibit affirmative action programs at public institutions within their borders

What is disability

the ADA is broadly drafted to cover persons with physical or mental impairments that substantially limit their everyday activities. including: 1. a physical or mental impairment that substantially limits one or more of the major life activities of the affect individual 2. a record of having such an impairment 3. being regarded as having such an impairment health conditions has been considered disabilities, alcoholism, AIDS, blindness, cancer, cerebral palsy, diabetes, hearth disease, muscular dystrophy and paraplegia. Same with HIV and morbid obesity

limitation on class action

the US supreme courts issued an important decision that limited the rights of employees to bring discrimination claims against their employer as a group or class. They held that to bring a class action, employees must prove a company wide policy of discrimination that had a common effect on all of the plaintiffs covered by the action

mitigating measures

the courts focused on whether a person has a disability after the use of corrective devices or medication. thus a person with nearsightedness whose eyesight could be corrected by wearing glasses did not qualify for a disability. When the corrective lenses, the person major life activities were not substantially impaired. congress amended ADA to strengthen its protections and prohibit employers from considering mitigating measures when determine if a individual has a disability it is now determined on a case by case basis

wage discrimination

the equal pay act require equal pay for male and female employees working at the same establishment doing similar work. to determine if it has been violates, court looks to the primary duties of the two jobs, rather then the job description controls

prima facie case of discrimination under the USERRA

the plaintiff must establish that the employer took an adverse employment action based in part on the employees connection with the military

state employees not covered by the ADEA

the states are immune from lawsuits brought by private individuals in federal court. the immunity stems from the US supreme courts interpretation of the 11th amendment. state immunity under this amendment is not absolute. when fundamental rights are at stake, congress has the power to abolish immunity to private suits. however, the court has found that state employers are generally immune from private suits brought by employees under the ADEA

requirements for protection

to be protected under title VII retaliation provisions, the plaintiff must have opposed a practice prohibited by title VII and suffered an adverse employment action as a result of that opposition protection extends to employees who speak out against discrimination against other employees during an employers internal investigation

Procedures under the ADA

to prevail a claim a plaintiff must show: 1. has a disability 2. is otherwise qualified for the employment in question 3. was excluded from the employment solely because of the disability the plaintiff must pursue the claim through the EEOC before filing action in court for a violation of the ADA EEOC may decide to investigate and perhaps sue the employer on the employees behalf. they can bring a suit even if the employer signed a agreement to submit job related disputes to arbitration. if the EEOC doesnt sure, the employee can. plaintiffs can seek the same remedies under title VII (reinstatement, back pay, limited amount of compensatory and punitive damages)

proving constructive discharge

to prove constructive discharge, an employee must present objective proof of intolerable working conditions. must also show that the employer knew or had a reason to know about these conditions yet failed to correct them within a reasonable time period. courts generally require the employee to show causation - the employers unlawful discrimination caused the working conditions to be intolerable.

sexual harassment

two forms: 1. quid pro quo - harassment occurs when sexual favors are demanded in return for job opportunities, promotions, salary increase, or other benefits 2. hostile- environment: harassment occurs when a pattern of sexually offensive conduct runs throughout the workplace and the employer has not take steps to prevent or discourage it. this exist when the workplace is permeated with discriminatory intimidation, ridicule and insult and it so severe or pervasive that it alter the conditions of employments

harassment by coworkers

when harassment by coworkers creates a hostile working environment, employee may still have a cause of action against the employer. employer will be held liable only if the management knew and failed to make immediate action. court can also hold an employer liable for harassment by non-employees if the employer knew about the harassment and failed to take corrective action

health insurance plans

worker with disabilities must be given equal access to any health insurance provided to other employees and cannot be excluded, the employer can put a cap but it has to be on all employees