la 245 chapter 19

hostile work environment

adea prohibits hostile work environment based on age.

prohibited activities

4 types of illegal activities under this statute: disparate tx, disparate impact, hostile environment, and retaliation. all of these are illegal if used against someone in a protected category

age discrimination in employment act

adea: an employer with 20 or more workers may not fire, refuse to hire, fail to promote, or otherwise reduce a person's employment opportunities bc he is 40 or older.

social media

almost all employers now rely on social media as part of their hiring process. information illegal for employers to act on include age religion pregnancy or illness.

same sex harassment

also a violation of title vii

bona fide occupational qualification bfoq

an employer is permitted to est discriminatory job requirements if they are essential to the position in question only religion, sex, or national origin. never race or color.

the specific language of title vii does not include sexual orientation as a protected category

but some courts now interpret the statute to include it as one

seniority

a legitimate seniority system is legal even if it perpetuates past discrimination

under the equal pay act

a worker may not be paid a lesser rate than employees of the opposite sex for equal work

merit

defendant not liable if he shows that the person he favored was the most qualified

employees at will can be fired for any reason except a bad reason

discrimination is only illegal if it involves a protected category age and disability...

background and credit checks

eeoc regulations prohibit companies from using criminal history information in a way that has an adverse impact on employees in a protected category if the background informations is irrelevant in det whether the employee is appropriate for the job. employers may not consider arrest records because that is not evidence of wrongdoing. eeoc also discourages the use of credit checks because minorities tend to have worse credit ratings than whites.

gender identity and expression

eeoc ruled that discriminating against someone for being transgender is a violation of title vii

hostile environment based on race color national origin

employer liability for harassment: employees who engage in illegal harassment are liable for their own misdeeds, but is the company also liable? if knew or should have known about conduct and failed to stop it even if company was unaware of misbehavior, it is nonetheless liable if the victimized employee suffered a tangible employment action such as firing demotion or reassignment. if company unaware of behavior and the victimized employee did not suffer a tangible employment action, the company is still liable unless it can prove that 1. it used reasonable care to prevent and correct harassing behavior 2. employee unreasonably failed to take advantage of complaint procedure or other preventive opps provided by the company. in gatter case, court held that employer was liable bc she suffered a tangible employment action that is she was fired.

pregnancy discrim act

employer may not fire, refuse to hire, or fail to promote a woman bc she is pregnant. also violates the statute if work environment is so hostile towards her that it affects her ability to do work.

voluntary action

employers can voluntarily introduce AA to remedy effects of past practices or to achieve equitable rep of minorities and women, provided it's not unfair to majority members.

religion

employers cannot discriminate against a worker bc of his religious beliefs. in addition, employers must make reasonable accommodation for a worker's religious practices unless the request would cause undue hardship for the business.

reverse discrim

making an employment decision that harms a non hispanic white person or man bc of his gender color or race. one exception: affirmative action> goal of these programs is to remedy the effects of past discrimination. affirmative action not required by title vii, nor is it prohibited.

immigration

under title vii, illegal for employers to discriminate against noncitizens bc national origin is protected category.

disparate tx

plaintiff must show that employer intentionally discriminated him bc of age, or enacted policy that intentionally treated employees diff bc of age. proof of intent involves obvious statements and behaviors. 1. plaintiff must show that he is 40+, suffered adverse employment action, qualified for job, replaced by younger person 2. employer must present evidence that decision was based on legitimate, nondiscrim reasons 3. plaintiff must show employer's reasons are a pretext, employer intentionally discrim and but for the plaintiff's age, employer would not have taken action it did.

rehabilitation act of 1973

prohibits discrim on the basis of disability by the executive branch by the executive branch of the federal gov, federal contractors, and entities that receive federal funds.

under title vii of civil rights act, illegal for employers with 15 or more employees to discriminate on the basis of

race color gender religion or national origin. title vii applies to every aspect of employment process from job ads to benefits to wages and working conditions of anyone who is one or more of the so called protected categories.

three conditions in which employers may consider customer preference

safety, privacy, authenticity

unattractiveness is not a protected category under

title vii

retaliation

title vii also prohibits employers from retaliating against workers who oppose discrim, bring a claim under the statute or take part in an investigation or hearing. however a defendant can defeat a retaliation claim by showing that there were other, nondiscriminatory reasons for his action. standard of proof higher for retaliation claims where plaintiff must demonstrate that, but for defendant's desire to retaliate, he would never have taken the harmful action. but for causation.

disparate treatment

to prove a disparate tx case, the plaintiff must show that she was treated less favorably than others bc of her sex race color religion or national origin 1. plaintiff presents evidence that: she belonged to a protected categ under title VII, she suffered adverse employment action, and the action occurred under conditions giving a rise to an inference of discrimination. if the plaintiff can show these facts, she has made a prima facie case. that is a case that appears to be true upon first look. the plaintiff is not required to PROVE discrimination, but she only needed to create a presumption that discrimination occurred. 2. defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons. 3. to win the plaintiff must now prove that the employer intentionally discriminated, although this motive can be inferred from the differences in treatment. burden of proof is on the plaintiff. has to show that a. the reasons the employer offered were simply a pretext or b. discriminatory intent is more likely than not

bona fide occupational qualification

to set a max age, employer must show that age limit necessary to essence of business virtually everyone that age is unqualified for the job age is the only way an employer can det who is qualified.

disparate impact

under adea a disparate impact case only requires two steps 1. plaintiffs must present a prima facie case that the employment practice in question excludes a disprop number of people 40+ 2. employer wins if it can show that the discrim decision was based on a reasonable factor other than age. ex cost is a reasonable factor since older workers are paid more.

litigation

courts have power under title vii to order AA to remedy effects of past discrim

hostile work environment

employers violate title vii if they permit a work environment that is so hostile toward people in a protected category that it affects their ability to work. sexual harassment: anita hill accused sc nominee clarence thomas of sexually harassing her. quid pro quo: if any aspect of a job is made contingent upon sexual activity. hostile work environment: employee has a valid claim of sexual harassment if sexual talk and activity are so pervasive that they interfere with her or his ability to work. offensive jokes, intrusive comments, pd of pics, etc can create a hostile environment.

gatter vs ika works inc

facts: courtney gatter was a sales rep for IKA. the company was owned by steigelmann family, which included rene, who worked for the company, and his son, marcel, who did not. gatter reported to refika bilgic, who was both MD and rene's romantic partner. gatter was ware of rumors linking rene romantically with various female employees. company took all of its employees and marcel on a sailing trip in mediterranean. gatter had never met marcel before the trip, but on the first day when gatter was on a deck, rene snapped a photo up her shorts. marcel didn't have an assigned bedroom and was sleeping on the deck. third night asked gatter if he could sleep in her room. they kissed and he wanted to have sex but she said no. bc gatter knew rene had liasions with female employees, she felt damned if she did and damned if she didn't. she finally gave in. although rene was upset when he found out, their affair continued on the trip. as the trip went on, gatter got more uncomfortable with the sexual environment. on two occasions she saw rene naked. gatter apologized to bilgic and rene for affair with marcel. rene said how can u spread your legs after the second day. he gave gatter an ultimatum, quit her job or break up with marcel. she agreed to end the relationship. they didn't meet again but continued to text, bilgic found out and fired gatter. gatter sued alleging sexual harassment. ika filed for a motion for summary judgement. issue: was gatter sexually harassed decision: to prevail gatter must show that 1. suffered intentional discrim 2. discrim was severe or pervasive 3. discrim detrimentally affected her 4. discrim would detrimentally affect a reasonable person in circumstances 5. employer's liability court is examining whether or not this case meets criteria for HOSTILE WORK ENVIRONMENT. an employee has a valid claim of sexual harassment if sexual talk and activity are so pervasive that they interfere with ability to work. court concerned whether or not marcel's actions were intentional or not bc one of the elements is that gatter suffered intentional discrim. fact that consensual relationship eventually emerged between marcel and gatter does not mitigate the severity of the initial proposition as an instance of sexual harassment. environment was severe as to constitute a change in conditions of gatters employment. liability in that IKA was negligent since it was a company trip and they brought marcel. gatter won. ika's motion for summary judgement declined.

gulino v bd of ed of city sch dist of ny

facts: ny state task force on teacher qualifications decided that all teachers needed a basic understanding of liberal arts and sciences. national eval systems (NES) a professional test devo company was hired to devo the liberal arts and sciences test (LAST) to measure this knowledge. nes began by est two committees of teachers and prof to ensure that last was relevant to job and free from bias. sent exam for review to 1200 public schools, some sample tests also. teachers couldn't be licensed to teach in NYC unless they passed the last. whites succeeded at a higher rate than aa's and latinos. issue: did last violate the title vii decision: under title vii, an exam is job related if it has been properly validated. essence of validation is in the requirement that the content of the test be related to the content of the job. there were several flaws in the way that the nes devo the last that prevent the court from finding that the company conducted a suitable job analysis. didn't base test on stuff teachers actually do. board failed to establish last is directly related to teachers jobs.

sex

gender must be irrelevant to employment decisions title vii forbids sexual stereotyping

gov contracts

gov may use AA programs when awarding contracts only if 1. it can show that the programs are needed to overcome specific past discrim 2. they have time limits, and 3. nondiscrim alternatives are not available.

disparate impact

griggs v duke power duke pwr required that all applicants to its most desirable depts have a high school education or a satisfactory score on two tests that measured intelligence and mechanical ability. neither test had anything to do with the job. obviously whites did better than blacks at this criteria even tho duke power wasn't blatantly discriminating against blacks. sc held that duke power was violating the title vii bc rules had a disparate impact on a protected category. disparate impact applies if the employer has a rule which on its face is not discrim, but in practice excludes too many people in a protected category. 1. plaintiff must present a prima facie case. not required to prove discrim but has to show disparate impact. in griggs, show that many more whites pass than blacks. eeoc defines disparate impact as one in which the pass rates for a protected category is less than 80% of that for others. eeoc is a federal agency charged with enforcing most discrim statutes. 2. the defendant must offer some evidence that the employment practice was a job related business necessity. duke power would have to show that tests predicted job performance. 3. to win, plaintiff must now prove either that the employer's reason is pretext or that other less discriminatory rules would achieve same results. note that unlike disparate tx, plaintiff in disparate IMPACT case does NOT HAVE TO PROVE INTENTIONAL discrimination

family responsibility discrim is a violation of title vii if it

involves men and women being treated differently

affirmative action programs have three diff sources

litigation, voluntary action, gov contracts