Chapter 20: Discrimination in Employment
quid pro quo
"this for that" happens when plaintiff is promised benefits or is threatened with loss if he or she does not give sexual favors to an employment supervisor -generally no defense
Equal does not mean
identical it means substantially equal
when are employers in violation
if they fail or refuse to hire based on discriminatory grounds NOT if they are hiring for a discriminatory purpose -unless someone is discrimnated against
County of Washington v. Gunther
illegal pay discrimination even when work is not substantially equal but rather comparative
Clarke County School District v. Breeden
ruled that "sexual harassment is actionable under Title VII only if it is so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment"
zarda case
second case to say sexual orientation is not included under sex discrimination DOJ said no and that congress needs to address it
Defense of business necessity
show there is no other availible alternative to make less disparate impact
one of the 1991 amendments
showing imbalance workforce based on race or gender is not enough to establish violation of title VII
altitude express inc vs zarda
sky diving instructor fired because he was gay
exception to that rule
sometimes speaking english is business necessity and this is a disparate impact defense
common national origin cases
speaking a native language and being discriminated against for it -ethnic background
discrimination on the basis of sex
supposedly protecting women when they dont all them to lift heavy objects, work the night or limit hours or required rest periods but this isnt allowed anymore
comparable worth
the concept that women and men should receive equal pay for jobs calling for comparable skill and responsibility -highly contraversial
Sexual Orientation Discrimination
title VII used to not prohibit discrimination based on sexual orientation but so recently they added that to title VII
1991 amendments: the EEOC must wait 60 days before it starts action
true
race normed employment tests
two different cutoff scores for different races or genders etc 1991 amendments prohibited this
sexual harassment
type of illegal sex discrimination in the workplace protects men too
employees cannot be required to pay union dues if they have religious obligations
union once violated this when they did not make any reasonable accomodations
physical harassment
unwanted massage too close to someone touching yourself rubbing up against someone 2/3 of women feel this from men
disparate-impact examples for race
using personnel tests that have no relation to job qualification denying employment to unwed mothers refusing to hire cause of credit score conviction records
when does BFOQ exist
when there is reasonable cause to believe that all or substantially all women would be able to perform safely and efficiently the duties of the job involved
when can employers legally discriminate based on religion, sex, or national origin
where there are BFOQs
where are cases rising in religion
with muslims and the example with the 4 muslims that got the worst positions and got called names
where is congress unwilling to make a BFOQ
with race and color
also you can file your own civil suit if EEOC refuses to hear it just make sure
you file with EEOC first because of the exhaustion of remedies clause and then you must wait 60 days to continue on with the claim after exhausting
vulgar lanuage
you say would never do this but it comes up in jokes all the time -sexual language
Meritor Savings Bank v. Vinson and harris vs forklift
- yes hostile work environment even when no economic loss occurs - illegal sexual harassment goes beyond causing injury
Defense to hostile work environment
-did not know or did not reasonably know of the problem -took reasonable care to prevent the problem correctly and promptly -attacker unreasonably tried to not follow the new procedures
employment practices that can be challenged
-testing and educational requirements -height and weight requirements -maintaining physical appearance -practicing affirmative action -seniority systems
BFOQs not permitted when
-women flight attendants required to be single -only women flight attendents -no female employees with young children -no females because of heavy lifting -no female newscasters because it sounds like gossip -women allowed to retire at 50 but men must wait until 55
Price Water House v. Hopkins
Pricewater refused to offer Anne Watkins as a partner for many reasons but then they added macho and non feminine in their as their description as she didnt fit the role -after this case, gender discrimination became a reason to sue
Employment Non-Discrimination Act
Proposed anti-discrimination laws regarding sexual orientation and gender identity that have been discussed and reintroduced but never passed because they couldn't increase power originally given to congress
when must an employee file charges of illegal discrimination with the EEOC
180 days after the notice of the unlawful pratice but if employee first filed with a state fair employment practices commission the law extends the time for filing with the EEOC to 300 days
people with white sounding naes are ___ more likely to get called for an initial interview than african american sounding names
50%
including sexual orientation
6-3 decision decided this past june or may 2020 and they ruled that sex includes sexual orientation
defense to disparate treatment
Bona Fide Occupational Qualification or BFOQ
bostock v clayton county georgia
Bostock joined a gay baseball team and was fired because of it the court ruled that title VII protects employees based on their sexual orientation
What created the Equal Employment Opportunity Commission? aka EEOC
Civil Rights Act of 1964
employers have to be so careful
not to use tools that illegally discriminate interviews can be biased without realizing -selecting males over females
sexual conduct
nude photos
Ricci vs. DeStefano
New Haven administered a test to firefighters to determine who qualified for promotion. The results showed that white and Hispanic candidates outperformed minority candidates -lose-lose: certify results and may be disparate impact or dont certify and whites say disparate treatment -Some minority firefighters argued that the test should be disregarded as discriminatory and that it had a disparate impact on minority. -Firefighters who passed the test argued that the city's failure to certify the test resulted in disparate-treatment discrimination -As a practical matter, New Haven believed that based on the arguments, it would be sued if it did or not certify the test results -they threw out results -the SC held that bc the exams were job related and consistent with business necessity, and there was no strong evidence of disparate impact violation, the city should have certified the test results -city tried to argue that disparate impact wouldve happened if they didnt certify but there was an 80% standard that they fell below -there was no evidence of disparate impact so city should not have disregarded the tests because since they did disregard them it was seen as disparate treatment
Obergefell v. Hodges
States obligated to recognize same-sex marriage from other states.
RG and GR Harris Funeral Homes inc vs EEOC
Stephens announced she was transgnder and she was fired zarda and stephens died befoe they knew they won their cases
EEOC (Equal Employment Opportunity Commission)
The Government agency that oversees discrimination in the workplace -5 members -appointed by the president and confirmed by the senate -adjudicating responsibilities -can file suit but first first must exhaust efforts to settle the claim
Thompson Vs. North American Stainless
Thompson and his fiance worked for the same employer, NAS. After Regalado filed a title 7 claim with the EEOC, NAS fired Thompson -Thompson sued but lower courts said he didnt have standing -The SC was asked to determine if firing him constitutes unlawful retaliation and, if so, whether he had a cause of action under title 7 -the court held that as an employee of NAS, Thompson was within the zone of interests of title 7 and the statute's anti retaliation provisions protection him. He has a standing to bring a claim against NAS. reasonable for person to not want to share bad activity if they knew their fiancee would be fired aka dissuade a person the employer did an unlawful action
principal law focusing on antidiscrimination
Title VII of the Civil Rights Act of 1964
discrimination is not the same thing as
a boss being a jerk to everyone so be careful
Equal Pay Act
administered by the EEOC prohibits an employer from discriminating between employees on the basis of gender by paying unequal wages for substantially the same work in similar working conditions and in the same establisment
BFOQ (Bona Fide Occupational Qualification)
all or substantially all members of the plaintiffs class cannot perform the duties of the job
1991 Amendments
allow the recovery of compensatory and punitive damages up to 300000 per person depending on the size of the employer -does not preempt states fair employment laws
in the past equality for all citizens had been
an ideal rather than a fact -slaves three fifths a person -women coulnt vote
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 or proceeding. -very subtle -great office to getting moved to the boiler room -never worked night shift but now u do
who can make a dsicrimination claim
anyone including witnesses
Title VII of the Civil Rights Act of 1964
apply to employers with 15+ employees, labor unions and certain other employers
employers have to make sure that the testing requirements and educational requirements
are job related and necessary for business
where are effects of inequality and discrimination most felt
area of job opportunity
must raise the number of employees question
at only trials because it cant be raised at appeas
1991 amendmens added
disparate impact statute that says employer cant use something that causes disparate impact based on race color sex religion and national origin
two types of discrimination
disparate treatment and disparate impact
tests can have a disparate impact
based on race color sex religion or national origin
Nonverbal Harassment
blocking the path staring at them unwanted gifts displaying sexual visual materiaal (playgirl pins, inappropriate drawn pictures, business trips and going to the room together)
defense to disparate impact
business necessity: practices or policies used are job related and consistent with a business necessity
religious rule
canot have sex outside of marriage and a single woman became pregnant so the school fired her but whats the equivalent for men? so this isnt allowed
Pregnancy Discrimination Act of 1978
cant discriminate against women who become pregnant or give birth -both married and unmarried women -no required leave of absense after work -sex discrimination applies equally to men as it does to women
when is discrimination is allowed when
comes from seniority system merit system or anything other than sex
types of employer actions where discrimination is prohibited
discharge refusal to hire compensation promotion terms, conditions, or privileges of employment
Title VII prohibits
discriminatory actiosn based on race or color that invlve recruiting hiring promotion discharge or application of the terms and conditions of employment
EEOC board has a lot more
diversity first woman general counsel
however court ruled once that
employee was rightfully fired when they refused to work on saturdays due to religion
Ledbetter v. Goodyear Tire & Rubber Co.
employees have a claim with each paycheck they receive but it must be filed withing 180 days after pay
to win a Title VII civil action case plaintiff must show
employer had an illegally discriminatory basis
retaliation is
employers taking employment actions against employees that would dissuade a reasonable person from engaging in such an act of protest
commercial treaties allow what
foreign companies to hire of their choice scotus ruled that japanese company cannot discriminate white employees because they came in fired all US managers to replace with japanese ones
what does equal payments include
fringe benefits such as stock options incentive bonuses and other benefits such as vacation, holiday pay, travel etc
congress is really tight when
handing out BFOQS and it must be a really good reason
draft card
have to get them stamped but its against some religious beliefs so you get someone else to stamp the draft cards -title VII allows them to preserve their employment status and the postal service did nothing wrong
EEOC has powers to
hold hearings, obtain evidence, examine witnesses, file a civil suit AFTER exhausting EEOC remedies
main goal of civil rights act of 1964
integration of african americans into mainstream society main idea: equal employment opportunities
discrimination based on customer preference
is not allowed
the discriminatory process is allowed if
it relates directly to job qualification
discrimination laws apply to
literally everyone
on basis of religion employers must
make reasonable accomodations to the needs of their employees as long as it doesnt cause undue hardship
(race) title VII protects
members of ALL races
hooters restaurant case
men denied jobs but women are entertainers so BFOQ rewarded but then hooters is required to fill host and bartenders for men -artistic performerss
height and weight requirement
must be applied equally to everyone and if they screen out a race or sex whatever they must show how its relevant to work
hostile work environment harassment
must be severe and pervassive enough to make working environment different
hostile work environment
offensive sexual comments, engage in suggestive touching, showing nude pitures or drawing sexual graffiti
when does title VII allow discrimination
on basis of religion sex or national origin and only when these considerations are bona fide occupational qualifications -actor vs actress - lutheran church hiring lutheran minister
defense to business necessity defense
other polices can be put in place and still qualify for business necessity and have less of a racial impact on the employees
Civil Rights Act of 1964
outlawed discrimination based on race, color, religion, sex, or national origin
Disparate Treatment
plaintiff must convince court that employer intentionally discriminated against the plaintiff
Disparate Impact
plaintiff must prove that the employers practices or policies had a discriminatory effect on a group protected by Title VII -"no problem with practice until you see the outcome"
if you have 15 employees or less
probably restrained by state law
state and local laws can
prohibit sexual orientation discrimination
cannot make this rule
prohibiting speaking spanish during work hours when all conversations do not need to be understand between employees
discrimination on basis of national origin
protects many ethnic groups
Two types of sexual harassment
quid pro quo and hostile work environment
title VII also prohibits (race)
racial insults all white or black crews better housing for diferent races higher bonuses
hostile work environment employer
reasonably knew or should have known of the problem
discrimination on the basis of religion
religious corps associations or societies can discriminate in their practices based on religion but not on the others however other organizations cannot discriminate based on color