Chapter 29

proving constructive discharge

an employee must present objective proof of intolerable working conditions. - the employee must also show that the employer knew or had reason to know about the conditions yet failed to correct them within a reasonable period -employee must show causation - employee humiliation is one of the most frequent cases - Constructive discharge can be used to establish any type of discrimination claims under title vii including race, color, national origin, religion, gender, pregnancy, and sexual harassment - employee can pursue damages for loss of income

sexual harassment

Sexual harassment- the demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment

unintentional discrimination (rate of hiring)

comparing the employers selection of rates of members and nonmembers of a protected class. -"four-fifths rule" - EEOC Rule -80 percent of the rate for the group with the highest rate will generally be regarded as evidence of disparate impact

The equal employment opportunity commission

compliance with title vii is monitored by the EEOC. - a victim of alleged discrimination must file a claim with the EEOC before bringing a suit against the employer -EEOC may investigate the dispute and attempt to arrange an out of court settlement - if an agreement cannot be reached the EEOC may file a suit against the employer on the employees behalf. - if the EEOC doesn't investigate the claim the EEOC issues a RIGHT TO SUE that allows the victim to bring her or his lawsuit against employer

WHAT IS NEEDED TO ESTABLISH A PRIMA FACIE CASE?????)

i. The plaintiff is a member of a protected class ii. The plaintiff applied and was qualified for the job in question iii. The plaintiff was rejected by the employer iv. The employer continued to seek applicants for the position or filled the position with a person not in a protected class

ADEA age discrimination employment act

in cases in which the employer has "mixed motive" for discharging an employee. the employer has the burden of provin its reason was legitimate -plaintiff must show that 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 age

discrimination based on gender ( pregnancy discrimination act )

women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in ability to work

what is a disability

- A physical or mental impairment that substantially limits one or more of an individual's major life activities - A record of such impairment - Being regarded as having such an impairment Examples o Alcoholism, AIDS, blindness, cancer, cerebral palsy, diabetes, heart disease, HIV, morbid obesity

defenses to employment discrimination

- Defense for an employer charged with employment discrimination is to assert that the plaintiff has failed to meet his or her initial burden of proving that discrimination occurred - Employer justify the discriminatory practice

discrimination based on gender ( wage discrimination, the equal pay act 1963)

- The Equal Pay Act of 1963 -requires equal pay for male and female employees doing similar work at the same establishment - Lilly Ledbetter Fair Pay Act

discrimination based on age ( Age discrimination in employment act ADEA)

- The age discrimination in employment act (ADEA)- Prohibits employment discrimination on the basis of age against individuals forty years of age or older. - Also prohibits mandatory retirement of non managerial workers - MUST HAVE 20 + EMPLOYEES, BUSINESS ACTIVITIES MUST AFFECT INTERSTATE COMMERCE -EEOC administrates the ADEA -Applies to employers with 20+ employees Private employers, federal works, but not state -Retaliation not allowed Burden of proof is on the employee

Discrimination based on disability

- The american with disabilities act ( ADA) - Prohibits disability-based discrimination in workplaces with fifteen or more workers - requires employers to reasonably accommodate the needs of persons with disabilities unless to do so would cause undue hardship. - 15 employees - Must pursue claim through EEOC prior to filing a lawsuit

discrimination based on gender

- cant prohibit jobs as female or male -employers cannot have separate male and female seniority lists and cannot refuse to promote employees based on gender

intentional discrimination

- discrimination against an employer against an employee ( disparate-treatment discrimination) - prima facie case

constructive discharge

- employees who leave their jobs voluntarily cab claim that they were " constructively discharged" Constuctive Discharge- a termination of employment brought about by making employees working conditions so intolerable that the employee reasonably feels compelled to leave

discrimination based on religion ( reasonable accommodation)

- employer must "reasonably accommodate" the religious practices of its employees, unless to do so would cause undue hardship to the employers business -only requirement is that the belief be sincerely held by the employee -at & t verses Rodriguez

coworker and non employees harassment

- employer will be held liable only if the employer knew, or should have known about the harassment and didn't take immediate remedial action

Association with a disabled person

- prevents employers from taking adverse employment actions based on stereotypes or assumptions about individuals who associate with people with disabilities example: Joan, an employer, refuses to hire Edward, who has a daughter with a physical disability. she bases her decision on the assumption that because of his daughter, Edward will have to miss work often or be unreliable.

Affirmative action

---Job-hiring policies that give special consideration to members of protected classes in an effort to overcome present effects of past discrimination. -- make up for past patterns of discrimination b giving members of protected classes preferential treatment in hiring and promotion. Controversial Inherently discriminatory Required in 1960s Not required nor prohibited by Title VII Equal Protection Issues State Laws Prohibiting Affirmative Action Programs

Title vii

-The most important statute covering employment discrimination is title vii of Civil Right Act. -Title vii prohibits discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, or gender at any state of employment -Title vii applies to employers with 15 or more employees and labor unions with 15 or more members

two types of sexual harassment

1) Quid Pro Quo - " something in exchange for something else" - Occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, and the like 2) Hostile- environment -Pattern of sexually offensive conduct permeates the workplace and is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment -On a case by case basis -Depends on the nature of frequency and whether it interfered with the victims work performance

defenses to employment discrimination

1) business necessity - -defend against a claim of disparate impact ( unintentional ) discrimination by asserting that a practice that has a discriminatory effect is a business necessity - employer demonstates that an employment practie that discrimantes against members of a protected class is related to job perfromance example: need to know a language 2) Bona Fide Occupational Qualification -An identifiable characteristic reasonably necessary to the normal operation of a particular business. Such characteristics can include gender, national origin, and religion, but not race - RACE NEVER BE BONA FIDE OCCUPATIONAL QUALIFICATION -Restricted BFOQ defenses to instances in which the employees gender is essential to the job 3) Seniority -A system in which those who have worked longest for an employer are first in line for promotions, salary increases, and other benefits, and are last to be laid off if the workforce must be reduced. 4) after acquired evidence of employee misconduct --Employers attempt to avoid liability for employment discrimination on the basis of AFTER-ACQUIRED EVIDENCE of an employee's misconduct ( evidence that the employer discovered after the employee had filed a lawsuit) -Cant shield employer entirely from liability but used to limit the amount of damages

unintentional discrimination ( pool of applicants)

1. as a result of educational or other job requirement or hiring procedures 2. the percentage of nonwhites, women, or members of a protected class in the employers workforce 3. does not reflect the percentage of that group in the pool of qualified applicants.

Protected Class

A group of persons protected by specific laws because of the groups defining characteristic, including race, color, religion, national origin, gender, age, and disability

reasonable accommodation ADA

Employee must be qualified for the work (be able to perform essential job functions with reasonable accommodation) 1) Undue Hardship - (case by case basis) - employer must prove significant difficulty/$ 2) Job Applications and Preemployment Physical Exams - Must modify job application process so that those with disabilities can compete for jobs with those who do not have disabilities. 3) Substance Abuse - active users not protected - ADA only protects persons with former drug addictions - must have completed drug rehabilitation program -People suffering alcoholism are protected under the ADA. employers cannot legally discriminate against employees simply because they are suffering alcoholism. - employers can refuse to hire a person who is an alcoholic if he or she poses a substantial risk or harm either to himself or herself or to others and risk cannot be reduced by reasonable accommodation Health-Insurance Plans - equal access

intentional discrimination ( What is a PRIMA FACIE CASE)

PRIMA FACIE CASE- a case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces no evidence to rebut it

class action limitations

United Supreme Court issued an important decision that limits the rights of employees (as groups or classes) to bring discrimination claims against the employer

disparate treatment discrimination

a form of employment discrimination that results when an employer intentional discriminates against employees who are members of protected classes **********A plaintiff who sues on the basis of disparate-treatment discrimination in hiring must first make out a PRIMA FACIE CASE

Procedures under the ADA american disabilities act

a plaintiff must show 1) he plaintiff has a disability 2) the plaintiff is otherwise qualified for the employment in question 3) the plaintiff was excluded from the employment solely because of the disability

discrimination based on race, color, national origin ( reverse discrimination)

discrimination against "majority" individuals, such as white males.

unintentional discrimination

disparate impact discrimination- discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory effect - plaintiff must show a prima facie case then the burden shifts to the employer to show that the practices and procedures were justified

discrimination based on religion

employers cannot treat their employees more or less favorably based on the employees religious beliefs or practices and cannot require employees to participate in any religious activity

state employee not covered by the ADEA

generally states are immune from lawsuits brought by private individuals in federal court. 11th amendment -state employers are immune from private suits brought by employees under the ADEA (age discrimination), Americans with disabilities act, and the fair labor standards act NOT IMMUNE FROM FAMILY AND MEDICAL LEAVE

remedies under title vii

may be rewarded reinstatement, back pay, retroactive promotions, and damages. compensatory damages are available in intentional discrimination punitive damages- recovered against private employer only if the employer acted with malice or reckless indifference to an individuals rights $50,000 for employers with 100 or fewer employees $300,000 for employers with 500 or more

harassment by supervisors

tangible employment action- a significant change in employment status or benefits, such as occurs when an employee is fired, refused a promotion, or reassigned to a lesser position Ellerth/ Faragher affirmative defense -That the employer has taken reasonable care to prevent and promptly correct any sexually harassing behavior. -That the plaintiff-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. if employer can prove both elements they will not be liable for the supervisors harassment

ADEA Prima facie case

the plaintiff must show 1) A member of the protected age group 2)Qualified for the position from which he or she was discharged 3) Discharged because of age discrimination

retaliation

title vii prohibits retaliation, employees can sue their employers on that basis -retaliation claim 1) an individual asserts that she or he has suffered a harm as a result of making a charge, testifying or participating in a title vii investigation 2) plaintiffs DO NOT have to prove that the challeneged action adversely affected their workplace or employment 3) instead the plaintiff must show that the challenged action was one that would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination

discrimination based on race, color, national origin

title vii protects employers for discriminating against employees based on race, color or national origin. must establish a prima facie case 1) was a member of a protected class 2 was qualified for the job 3) suffered an adverse employment action 4) was replaced by someone outside his protected class