ACCT 324 Chapter 43

Defenses Under EPA

-A bona fide seniority system -A bona fide merit system -A pay system based on quality or quantity of output -Factors other than sex

When may an Employee Be Fired?

At-will Employment: an employee who is not employed under a contract or a collective bargaining agreement -An employee may quit at any time for any reason or no reason at all, with no required notice to the employer -An employer may fire the employee at any time, with no notice, for almost any reason -Exception: an employer may not fire an employee for an illegal reason; exceptions have also been found through breaches of implied contracts with employees on the basis of employee handbooks

Defenses Under ADEA

Bona Fide Occupational Qualification (BFOQ) defense: To succeed, the defendant must establish that he or she must hire employees of only a certain age to safely and efficiently operate the business in question Executive Exemption: an individual may be mandatorily retired after age 65 if... a) He has been employed as a bona fide executive for at last two years immediately before retirement b) On retirement, he is entitled to non-forfeitable annual retirement benefits of at least $44,000

Americans with Disabilities Act

Prevents employers from discriminating against employees and applicants with disabilities Attempts to attain this objective by requiring that employers make reasonable accommodations to the known physical or mental disabilities of an otherwise qualified person with a disability unless the necessary accommodation would impose an undue burden on the employer's business

The Impact of Extra Duties Under EPA

Courts scrutinize these duties very closely and require that: -the extra duties are actually performed by those receiving the extra pay -The extra duties regularly constitute a significant portion of the employee's job -The extra duties are substantial, as opposed to inconsequential -The extra duties are commensurate with the pay differential -The extra duties are available on a nondiscriminatory basis

Discrimination Based on Sexual Orientation - Actionable?

When the issue is narrowed to relationship recognition, the number of states recognizing such rights becomes much smaller Defense of Marriage Act (DOMA): Prevented same-sex couples whose marriages were recognized by their home state from receiving the hundreds of benefits available to other married couples under federal law

Two ways to prove discrimination

Disparate Treatment (intentional discrimination): occurs when an employee is treated differently on the basis of being a member of a protected class Disparate Impact (unintentional discrimination): occurs when an employer sets a requirement for employment that inadvertently precludes large numbers of a protected class from employment in a particular job

Equal Pay Act of 1963

Eliminate situations where women would be paid lower wages for doing substantially the same job

Federal Laws Governing Employers

Employees are protected in the workplace by a number of both federal and state laws Federal laws are the minimum level of protection for all workers State laws may give employees more, but not less, protection than federal laws

May an Employer Discriminate against a Smoker?

Employers argue that smokers have higher health care costs and miss more work, lowering productivity

Remedies for Violations of EPA

Plaintiffs may recover back pay in the amount of the difference between what they make and what is paid to members of the opposite sex, plus attorney fees If the employer was not acting in good faith in paying the discriminatory wage rates, the court will also award the plaintiff damages in an additional amount equal to the back pay

Age Discrimination in Employment Act of 1967

Enacted to prohibit employers from refusing to hire, discharging, or discriminating in terms and conditions of employment against employees or applicants age 40 or older Applies to employers having 20 or more employees; to employment agencies and to unions that have at least 25 members or that operate a hiring hall; does not apply to state employers

Defining Equal Work Under EPA

Equal means... -Skill -Effort -Responsibility -Working Conditions Factors are looked at individually; legal standard is that the jobs must be "substantially similar"

Procedure for Filing a Claim Under Title VII

Failure to follow the proper procedures within the strict time framework may result in a plaintiff's losing his or her right to file a lawsuit under title VII

Defenses to Claims Under Title VII

The Bona Fide Occupational Qualification Defense: allows an employer to discriminate in hiring on the basis of sex, religion, or national origin when doing so is necessary for the performance of the job -Necessity must be based on actual qualifications, not stereotypes about one group's abilities The Merit Defense: raised when hiring or promotion decisions are partially based on test scores -Tests must be validated in accordance with standards established by the American Psychological Association -Types of Validation Acceptable: a) Criterion-Related Validity: the statistical relationship between test scores and objective criteria of job performance b) Content Validity: isolates some skill used on the job and directly tests that skill c) Construct Validity: wherein a psychological trait needed to perform the job is measured The Seniority System Defense -A bona fide seniority system is a legal defense -Even though a seniority system, in which employees are given preferential treatment based on their length of service, may perpetuate past discrimination, such systems are considered bona fide and are thus not illegal if... a) They system applies equally to all persons b) The seniority units follow industry practices C)The seniority system did not have its genesis in discrimination d) The system is maintained free of any illegal discriminatory purpose

Employment Discrimination Internationally

The EEOC will first consider where the company is incorporated. If not incorporated, the EEOC will evaluate factors such as the company's principal place of business, the nationality of the controlling shareholders, and the nationality and location of management Look at broad range of factors: interrelation of operations, common management, centralized labor relations, and common ownership or financial control over the two entities

Remedies Under Title VII

A plaintiff may seek both equitable and legal remedies for violations of Title VII Back Pay: difference between the amount of money the plaintiff earned since the discriminatory act and the amount of money she would have earned since the discriminatory act never occurred Plaintiff may also receive remedial seniority dating back to the time when the plaintiff was discriminated against; compensatory damages, including those for pain and suffering; and, in some cases, punitive damages Attorney fees may be awarded to a successful plaintiff

Remedies for Violations of ADA

A successful plaintiff may recover reinstatement, back pay, and injunctive relief In cases of intentional discrimination, limited compensatory and punitive damages are also available

Proving Disparate-Impact Discrimination Under Title VII

Arise when a plaintiff attempts to establish that while an employer's policy or practice appears to apply to everyone equally, its actual effect is that it disproportionately limits employment opportunities for a protected class Plaintiff proves a case based on disparate impact by first establishing statistically that the rule disproportionately restricts employment opportunities for a protected class. Burden of proof then shifts to the defendant, who can avoid liability by demonstrating that the practice or policy is a business necessity. The plaintiff, at this point, can still recover by proving that the "necessity" was promulgated as a pretext for discrimination

Civil Rights Act - Title VII

Assures everyone in the nation of certain basic rights Deals with discrimination in employment Prohibits employers from hiring, firing, or otherwise discriminating in terms and conditions of employment and prohibits segregating employees in a manner that would affect their employment opportunities on the basis of their race, color, religion, sex, or national origin Applies to employers who have 15 or more employees for 20 consecutive weeks within one year and who are engaged in a business that affects commerce

Filing a Charge with the EEOC

First step is the aggrieved party's filing of a chare with the state Equal Employment Opportunity Commission or, if no such agency exists, the federal EEOC Charge: a sworn statement that states the name of the charging party, the names of the defendants, and the nature of the discriminatory act In states that do not have state EEOCs, the aggrieved party must file the charge with the federal EEOC within 180 days of the alleged discriminatory act In states that do have such agencies, the charge must be filed either with the federal EEOC within 180 days of the discriminatory act or with the appropriate state agency within the time limits prescribed by local law, which cannot be less than 180 days If initially filed with the local agency, the charge must be filed with the federal EEOC within 300 days of the discriminatory act or within 60 days of receipt of notice that the state agency has disposed of the matter, whichever comes first

Harassment of Other Protected Classes Under Title VII

Hostile-environment cases have also been used in cases of discrimination based on religion and race

The EEOC Right-to-Sue Letter

If the EEOC decides not to sue, it notifies the plaintiff of his or her right to file an action and issues the plaintiff a right-to-sue letter, which is not intended to be anything other than a statement that the plaintiff has followed the proper initial procedures and therefore may file a lawsuit Plaintiff must have this letter in order to file a private action Letter may be requested at any time after 180 days have elapsed since the filing of the charge As long as the requisite time period has passed, the EEOC will issue the right-to-sue letter regardless of whether or not the EEOC members find a reasonable basis to believe that the defendant engaged in discriminatory behavior Once an employee receives a right-to-sue letter, he or she is free to hire an attorney and file a lawsuit against the employer

Who is protected under ADA?

Must meet the following... a) Has a physical or mental impairment that substantially limits one or more of the major life activities of such individual b) Has a record of such impairments? c) Is regarded as having such an impairment Plaintiff may file a charge with the appropriate state agency or with the EEOC within 180 days of the discriminatory act If a charge has been filed with the state agency, an EEOC charge must be filed within 300 days of the discrimination or within 30 days of receiving notice of the termination of state proceedings, whichever comes first

Proving Age Discrimination Under ADEA

Protects only those age 40 or over An employer can refuse to promote an employee under 40 because he or she is too old or too young To prove a prima facie case of age discrimination involving a termination, the plaintiff must establish facts sufficient to create a reasonable interference that age was a determining factor in the termination. Plaintiff raises this interference by showing that she... a) Belongs to the statutorily protected class (those 40 or older) b) Was qualified for the position held c) Was terminated under circumstances giving rise to an interference of discrimination Once the plaintiff sets forth the facts that give rise to an inference of discrimination, the burden of proof shifts to the defendant to prove there was a legitimate, nondiscriminatory reason for the discharge. If the employer meets this standard, the plaintiff may recover only if he or she can show by a preponderance of the evidence that the employer's alleged legitimate reason is a pretext for discrimination

Pregnancy Discrimination Act of 1987 (PDA) - An Amendment to Title VII

This law expanded the definition of discrimination based on gender to include discrimination based on pregnancy Temporary disability caused by pregnancy must be treated the same as any other temporary disability It is illegal to change the terms and conditions of employment on the basis of pregnancy

Proving Disparate-Treatment Discrimination Under Title VII

To sue, the plaintiff must be a member of a protected class as listed in the act Proving this type of discrimination is a three step process -Plaintiff must demonstrate a prima facie case of discrimination -Defendant must articulate a legitimate, nondiscriminatory business reason for the action -Plaintiff must show that the reason given by the defendant is a mere pretext Damages include up to two years of back pay, compensatory damages, punitive damages, attorney fees, court costs, court orders, and remedial seniority

Sexual Harassment Under Title VII

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that implicitly or explicitly makes submission a term or condition of employment Two forms of sexual harassment 1) Quid Pro Quo: occurs when a supervisor makes a sexual demand on someone of the opposite sex and this demand is reasonably perceived as a term or condition of employment 2) Hostile Work Environment Harassment in Cyberspace: Employers have a duty to remedy online harassment when they have notice that employees are engaged in a pattern of retaliatory harassment using a work-related online forum Same-Sex Harassment - The Supreme Court Speaks Harassment by Nonemployees under Title VII: If an employer knows that a customer repeatedly harasses an employee yet the employer does nothing to remedy the situation, the employer may be liable

EEOC Conciliation Attempts

Within 10 days of receiving the charge, the EEOC must notify the alleged violator of the charge If the EEOC does find reasonable cause, it attempts to eliminate the discriminatory practice through conciliation, that is, by trying to negotiate a settlement between the two parties If unsuccessful, the EEOC may file suit against the alleged discriminator in federal district court