Exam 1 MGMT 417 Mod 3

Employees bringing workplace discrimination claims under the post-Civil War statutes do not file claims under the EEOC and instead must go to an attorney. TRUE OR FALSE

The correct answer is True.

The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing federal employment discrimination statutes.

Exhaustion of administrative remedies: An individual who believes she has been the victim of employment discrimination in violation of Title VII must first exhaust the administrative remedies with the EEOC before the individual can file a lawsuit against her employer. EEOC receives 90,000 - 100,000 claims ("charges") annually. 2015: EEOC received approximately 90,000 charges EEOC extracted over $525 million from employers (up from $372 million in 2013)

If the parties involved in an employment discrimination case choose not to mediate the charge, or if the mediation is not successful, the EEOC :

The correct answer is C. If the parties involved in an employment discrimination case choose not to mediate the charge, or if the mediation is not successful, the EEOC investigates the complaint by talking with the parties and other witnesses.

As per the Lilly Ledbetter Fair Pay Act of 2009:

The correct answer is D. The 180-day SOL with regard to wage discrimination begins to run all over again each time a paycheck is issued based on pay discrimination.

Title VII: Who Must Comply?

Title VII applies to: All private employers with 15 or more employees (for each work day in each of the 20 preceding weeks) Unions Joint labor and management committees making admission, referral, training, and other decisions Employment agencies Federal, state, and local governments

Summary

Describe the key impacts of the Civil Rights Act of 1964. Describe the key elements of Title VII of the Civil Rights Act of 1964 and how they impact employers and employees. Identify who is/is not covered under Title VII. Describe the function of the EEOC. Articulate the EEOC Complaint Process. Describe the parties and process involved in Mandatory Arbitration Agreements. Describe the changes involved in the Reconstruction Civil Rights Acts.

Which of the following is true of Title VII of the Civil Rights Act of 1964?

The correct answer is B. It does not cover non-U.S. citizens working outside the United States. .

Winston owns and operates a Bed & Breakfast Inn near the Lumbee Indian reservation. He favors Lumbee Indians when hiring for job positions at the Inn. Winston's hiring practices:

The correct answer is B. Winston's hiring practices do not violate Title VII of the Civil Rights Act because it allows for such preferential treatment.

Reconstruction Civil Rights Acts: pre-Title VII laws

Prior to the Civil Rights Act of 1964, there were three main pre-Title VII laws aimed at prohibiting racial discrimination. These three "Reconstruction Civil Rights Acts" (42 USC §§ 1981, 1983 & 1985) were passed by Congress after the Civil War ended and the 13th Amendment (which abolished slavery) was passed in 1865 in an effort to further the status of the former slaves as free citizens. The acts are listed below. 42 USC §1981: All persons within the US shall have the same right in every state to make and enforce contracts as is enjoyed by white citizens. For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification and termination of contracts and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship. Used as an alternative to Title VII Statute of Limitations: 4 years, instead of 180 days Employee files suit without having to exhaust administrative remedies (no EEOC claim filed) No limits on damages Applies to all employers (not just those with 15 or more employees) 42 USC §1983: Every person who, acting under the color of state law, subjects any citizen of the US, or other person within the US, to be deprived of any rights or privileges secured by the Constitution, shall be liable to the party injured. Cannot be used for discrimination by private employers, since they are not acting "under the color of law." "Acting under the color of state law" refers to someone who appears to be acting on behalf of the government, or with government authority (i.e., a white police officer using excessive force against a black suspect, thus violating the black suspect's civil rights). This is the federal "civil rights" statute that would be used by the black suspect to sue the white officer. Can only be used to redress discrimination by government personnel. In the employment relationship, this statute could be used by a government employee to sue her supervisor.

Title VII

Title VII applies to all companies that employ 15 or more employees. Title VII: (a) It shall be an unlawful employment practice for an employer— to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or ​ to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 USC §2000e-2 Later Amendments to Title VII: Equal Employment Opportunity Act of 1972: Expanded protection to government employees, and the EEOC was given greater powers to enforce Title VII by permitting it to commence lawsuits itself, rather than have to refer cases to the DOJ. Pregnancy Discrimination Act of 1978: Added discrimination on the basis of pregnancy as a type of gender discrimination. Civil Rights Act of 1991: Permits jury trials for plaintiffs seeking compensatory (including emotional distress) and punitive damages, allows plaintiffs to recover attorney fees, limits the ability of white employees to bring "reverse discrimination" suits and codified the disparate impact theory invented by the US Supreme Court in Griggs v. Duke Power Co., (US, 1971). EEOC issued a regulation in 2012 that added transgender as a type of gender discrimination, although no US Court of Appeals has agreed with this. Example Case: With regard to limiting the ability of white employees to bring "reverse discrimination" suits, in 1974, the Jefferson County, Alabama Personnel Board signed a consent decree that required the county to hire and promote black firefighters. Wilks, a white firefighter, took issue with the agreement, claiming that he and other white firefighters (who were not parties to the original consent decree signed in 1974) were more qualified than some of the black firefighters who were receiving promotions. In Martin v. Wilks (US, 1989), the US Supreme Court allowed white firefighters to challenge the consent decree many years after its issuance. The Civil Rights Act of 1991 overturned Wilks by providing that those persons who might be adversely affected by a consent decree must be provided a reasonable opportunity to challenge the order at the time it is entered into, but subsequent legal challenges would be barred absent unusual circumstances.

Title V11: Who is Covered?

Title VII covers all public sector (government) and private sector (non-government) employees (not independent contractors) and applicants who are members of a protected class, all levels of employees (i.e., supervisors, managers, executives, etc.), as well as US citizens employed by US employers located outside the US. This includes US Permanent resident "employees" employed in the US. Does Title VII apply to illegal aliens? US Supreme Court said no, but EEOC says yes. US Supreme Court denied back pay to an illegal alien in Hoffman Plastic Compounds, Inc. v. NLRB (US, 2002). In response, EEOC says it will no longer ask what the employee's status is when it handles their discrimination claim. Who is NOT Covered? Employees of private employers with fewer than 15 employees. Non-U.S. citizens employed outside the United States. Religious institutions with regard to their religious activities ("ministerial exception"). (i.e., a Jewish rabbi could not sue for not being hired to be a priest in a Catholic church) Employers located near Native American reservations may give preference to hiring Native Americans. Members of the Communist party. Have you completed this item? If so Mark as Complete

Filing A Claim with EEOC

tatute of Limitations to file the claim: Everyone other than federal government workers has 180 days from the discriminatory event to file a claim. The 180 day filing deadline is extended to 300 days if a state has a state or local agency that enforces a state or local law that prohibits employment discrimination on the same basis as the federal statute. EEOC refers to these agencies as Fair Employment Practices Agencies (FEPAs). EEOC and some FEPAs have work sharing agreements in place to prevent the duplication of effort in charge processing. According to these agreements, if you file a charge with either EEOC or a FEPA, the charge also will be automatically filed with the other agency. This process, which is defined as dual filing, helps to protect charging party rights under both federal and state or local law. Federal government workers have 45 days from the discriminatory event to file a claim. Lilly Ledbetter Fair Pay Act of 2009 With regard to pay discrimination claims, the Statute of Limitations starts over with each discriminatory pay check received.

Civil Rights Act of 1964

The Civil Rights Act of 1964 is a landmark piece of civil rights legislation that prohibits discrimination on the basis of race, color, religion, gender or national origin with regard to a wide range of matters. The CRA of 1964 passed the House of Representatives by a vote of 290-130. It passed the Senate in June 1964 by a vote of 73-27 and was then signed into law by President Lyndon Johnson on July 2, 1964. First page of the Civil Rights Act of 1964 First page of the Civil Rights Act of 1964 Below are the various sections of the Act: Title I: Prohibits unequal application of voter registration requirements. Title II: Prohibits discrimination in hotels, motels, restaurants, theaters, and all other public accommodations engaged in or effecting interstate commerce. Title III: Prohibits discrimination by state and local governments with regard to access to public facilities. Title IV: Desegregation of public schools. Title V: Expanded the Civil Rights Commission that was created by the Civil Rights Act of 1957 with additional powers, rules and procedures. Title VI: Prevents discrimination by government agencies that receive federal funds. Title VII: Prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. (More on this in the rest of this module). Title VIII: Required the compilation of voter-registration and voting data in geographic areas (i.e., the south) specified by the Commission on Civil Rights. Title IX: ​Made it easier to move civil rights cases from state courts to federal court.

A person can file a discrimination lawsuit in court against his or her employer for violating Title VII of the CRA of 1964 without going through the Equal Employment Opportunity Commission's administrative process. true or false

The correct answer is False.

Title VII: What is Prohibited?

Title VII prohibits discrimination by an employer with regard to: Hiring & Firing Promotion Training Discipline Compensation and Benefits Classification Other terms or conditions of employment Note: ANY adverse decision by an employer can be challenged by an employee or applicant if the decision was based, in any part, on the employee's protected category.

U.S. citizens employed outside the United States by foreign employers are protected against workplace discrimination by Title VII of the Civil Rights Act of 1964. true or false

FALSE

Case: Petruska v. Gannon University (3d Cir., 2006)

Facts, Procedural History & Issue: The plaintiff (female) was a "chaplain" (an administrative position with a theology degree) employed by the defendant, a private Catholic university. The plaintiff opposed certain university policies and also alleged gender-based pay inequality for female employees. The plaintiff resigned and claimed constructive discharge and gender-based discrimination in violation of Title VII. Held: Ministerial exception; Title VII does not apply to the defendant because it would violate 1st Amendment. ​Case Dismissed

EEOC Complaint Process

The following are the steps in the EEOC Complaint Process: Employee files charge with a local EEOC office. EEOC notifies employer of charge w/in 10 days. It is imperative that the employer not retaliate against the employee after receiving notification that a charge has been filed. Retaliation is a separate violation of Title VII and the employer can be held liable for retaliation regardless of whether the employer is held liable for the underlying discrimination charge. EEOC determines if mediation is appropriate. If so, EEOC offers mediation to the parties. Decision to participate is voluntary (The EEOC offers mediation to 60-70% of its incoming charges every year, 15% of which are actually mediated). Each party has 10 days to accept offer. If both parties accept, mediation must occur within 45 days (if using third party mediators) or 60 days (if using EEOC mediators). If the parties reach agreement, the decision becomes binding. If the parties do not accept mediation, or if the parties cannot reach agreement, EEOC investigates the complaint (average time for investigation: 182 days). The EEOC investigates the complaint by talking with the employer and the employee and other necessary witnesses, as well as viewing any documents (i.e., emails) and visiting the workplace. Upon completion, EEOC makes a determination as to whether there is reasonable cause or no reasonable cause to believe that discrimination has occurred. Either party can ask for reconsideration. If No-Reasonable Cause: Parties are notified, case is dismissed and claimant is issued a dismissal and notice of rights letter ("right-to-sue" letter); allows claimant to file suit within 90 days of receiving the letter. If Reasonable Cause: Parties meet with an EEOC investigator to "conciliate" the matter. If the parties reach agreement, the claim is resolved and the case is closed. Majority of claims are disposed of at this stage. If the parties do not reach agreement, EEOC notifies employer of proposed remedy. If employer disagrees, EEOC can file suit in US District Court. Title VII requires that courts accord EEOC decisions de novo review, which means that the court must take a "fresh" look at the case without reference to the conclusions reached by the EEOC. Whether courts actually provide de novo review, or are influenced by the EEOC's decision, is debatable. EEOC has a 90% litigation success rate.

Mandatory Arbitration Agreements

A Mandatory Arbitration Agreement is provision in an employment contract that requires that all disputes between an employer and an employee shall be resolved thru binding arbitration rather than filing a lawsuit in court. The Federal Arbitration Act provides that the arbitrator's decision is not subject to judicial review unless the decision was the result of a party's fraud, the arbitrator engaged in collusion with one of the parties, the contract is unconscionable or other misconduct by the arbitrator. Question: Does an MAA prevent an employee from filing an employment discrimination charge with the EEOC or a lawsuit in court? Circuit City Stores, Inc. v. Adams (US, 2001): The Plaintiff (Adams) signed an employment contract that included an MAA. The plaintiff filed a lawsuit against the Defendant in California state court, alleging violation of state employment law. The Defendant filed suit in federal court, seeking to compel arbitration under The Federal Arbitration Act. The 9th Circuit Court held that MAA was not applicable to employment contracts. The Defendant appealed to the US Supreme Court. Held: MAA in employment contracts are enforceable under FAA; Plaintiff cannot file an employment discrimination lawsuit in court; arbitration decision not subject to judicial review. In the 5-4 decision, the US Supreme Court remanded the case back to the 9th Circuit. On remand, the 9th Circuit again struck down the MAA, this time by saying that it was unconscionable because it was a contract of adhesion (i.e., offered on a take-it or leave-it basis), did not require Circuit City to arbitrate its disputes, and it required the employee to pay one-half of the arbitration costs! The court said it was therefore unenforceable, which then allowed Adams to pursue his lawsuit in court. When Circuit City then appealed this decision, the US Supreme Court declined to hear the case, which left the lower court's decision in place. So, this proves that there is more than one way to circumvent a "Supreme" court decision. EEOC v. Waffle House, Inc. (US, 2002): Held: Even though MAA is enforceable, since the EEOC is not a party to the MAA, the MAA does not prevent the EEOC from filing its own lawsuit against the employer on behalf of the employee and seek specific relief for the employee, including back-pay, reinstatement and damages for the employee. So, even though the MAA may prevent the employee from filing lawsuit against employer, the MAA does not prevent the EEOC from filing a lawsuit by acting as the employee's agent. This was a 6-3 decision by the Supreme Court.