Law Chapter 43

CRA Title VII

Deals with discrimination in employment. Prohibits employers from hiring, firing, or otherwise discriminating in terms and condition 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 with 15 or more employees for 20 consecutive weeks within one year and are engaged in a business that affects commerce. US Gov, corporations owned by the government, agencies of the District of Columbia, Indian Tribes, private clubs, unions, and employment agencies are also covered

ADA Protections

A person who meets one of the following criteria: Has a physical or mental impairment that substantially limits one or more of the major life activities of such individual; has a record of such impairment; is regarded as having such an impairment

Hostile Work Environmental

A plaintiff must demonstrate: he or she suffered intentional, unwanted discrimination because of his or her sex; the harassment was severe or pervasive; the harassment negatively affected the terms, conditions, or privileges of his or her work environment; the harassment was both subjectively and objectively unwelcome; management knew about the harassment, or should have known, and did nothing to stop it

Seniority System Defense

A system in which employees are given preferential treatment based on their length of service, may perpetuate past discrimination - not illegal if: the system applies equally to all persons; the seniority units follow industry practices; the seniority system did not have its genesis in discrimination; and the system is maintained free of any illegal discriminatory purpose

Pregnancy Discrimination Act of 1987

Amendment Title VII of the CRA that expands the definition of sex discrimination to include discrimination based on pregnancy

Executive Exemption

An individual may be mandatorily retired after the age of 65 if: he or she has been employed as a bona fide executive for at least two years immediately before retirement; on retirement, they are entitled to non forfeitable annual retirement benefits of at least $44,000

EPA Awards

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

EPA Defenses for Employer

Bona Fide seniority system; bona fide merit system; pay system based on quality or quantity of output; factors other than sex

Defenses for Title VII for defendants

Bona fide occupational qualification, merit, and seniority system defenses

Disparate Treatment Awards

Damages - up to two years back pay, compensatory damages, punitive damages, attorney fees, court costs, court orders (inc. reinstatement), and remedial seniority

Proving Disparate Treatment

The plaintiff must be a member of a protected class. 1. Plaintiff (employee) must demonstrate a prima facie case of discrimination; 2: Defendant (employer) must articulate a legitimate, nondiscriminatory business reason for the action; 3. Plaintiff must show that the reason given by the defendant is a mere pretext (despite their qualifications)

Sexual Orientation

There is currently no federal legislation that prohibits discrimination based on sexual orientation. Individual state laws prohibit such discrimination

Sexual Harassment

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature that implicitly or explicitly makes a submission a term or condition of employment; makes employment decisions related to the individual dependent on submission to or rejection of such conduct; or has the purpose or effect of creating an intimidating, hostile, or offensive work environment

Merit Defense

Usually raised when hiring or promotion decisions are partially based on test scores. Professionally developed ability tests that are not designed, intended, or used to discriminate may be used. Acceptable validations are: 1. Criterion-related validity: the statistical relationship between test scores and objective criteria of job performance; 2 Content Validity: isolates some skill used on the job and directly tests that skill; 3 Construct Validity: a psychological trait needed to perform the job is measured

Bona Fide Occupational Qualification Defense

allows an employer to discriminate in hiring on the basis of sex, religion, sexual privacy, or national origin (but not race or color, or customer preference) when doing so is necessary for the performance of the job. Necessity must be based on actual qualifications.

Equal Work under EPA

plaintiff must how the employer pays unequal wages to men and women for doing equal work at the same establishment. Equal in this case means (substantially similar): skill, effort, responsibility, working conditions

Back Pay

the difference between the amount of money the plaintiff earned since the discriminatory act occurred and the amount of money she would have earned had the discriminatory act never occurred

Prima Facie (at first view)

the evidence is sufficient to raise a presumption that discrimination occurred

Pregnancy Discrimination Act

Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Temporary disability caused by pregnancy must be treated the same as any other temporary disability

Proving discrimination under Title VII

Disparate treatment or disparate impact

At will employee

Employee not employed under a contract or a collective bargaining agreement. This employee may quit at any time for any reason or no reason at all. An employer may also fire the employee at any time

Harassment by Non employees

Employers may be held liable for harassment of their employees by non employees under very limited circumstances

ADEA Requirements

Employers with 20 or more employees, employment agencies and unions with at least 25 members or that operate a hiring hall. Does not apply to state employers

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

Disparate Treatment (intentional discrimination)

Occurs when an employee is treated differently on the basis of being a member of a protected class (race, religion, sex, national origin, or color)

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

Proving Disparate Impact

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. 1. Plaintiff establishes statistically that the rule disproportionately restricts employment opportunities for a protected class. 2. The defendant must demonstrate that the practice or policy is a business necessity. 3. The plaintiff can prove that the "necessity" was promulgated as a pretext for discrimination

ADA Claim

Plaintiff must show that they had a disability, was otherwise qualified for the job, was excluded from the job solely because of that disability. May file a charge within 180 days of the act, charge must identify the defendant and specify the nature of the act, EEOC must notify the accused and attempt to conciliate the matter. If the conciliation fails, EEOC may bring civil action

Proving Age Discrimination

Plaintiff must show that: they belong to the statutorily protected class (40 or older), was qualified for the position held, was terminated under circumstances giving rise to an inference of discrimination. The employer may then prove there was a nondiscriminatory reason for the discharge. Employee can then show that the employers alleged legitimate reason is a pretext for discrimination

Distinct forms of sexual harassment

Quid pro quo and hostile work environment

Filing a claim under Title VII

1: File a charge with the EEOC: within 180 days of the alleged discriminatory act. or file a charge with a state agency. 2: EEOC notifies the employer of the charge within 10 days, investigates and attempts to negotiate a settlement, may file a lawsuit in federal court on behalf of the employee, if there is no settlement and no lawsuit, the commission issues a "right to sue" letter to the employee; 3: Employee may file a lawsuit

Extra Duties under EPA

Giving members of one sex additional duties. Courts require that: extra duties are actually performed by those receiving the extra pay; extra duties regularly constitute a significant portion of the employee's job; extra duties are substantial, as opposed to inconsequential; the extra duties commensurate with the pay differential; the extra duties are available on a nondiscriminatory basis

Preventing Sexual Harassment Claims

Implement a policy against sexual harassment; require supervisory training; provide a mechanism for receiving complaints; and create a method for conducting prompt and thorough investigations

Remedies for ADA violations

May recover reinstatement, back pay, and injunctive relief

Preponderance of the evidence

More likely than not

Equal Pay Act of 1963

Prohibits an employer from paying workers of one gender less than the wages paid to employees of the opposite gender for work that requires equal skill, effort, and responsibility

Americans with Disabilities Act

Prohibits discrimination against employees and job applicants with disabilities

Age Discrimination in Employment Act of 1967

Prohibits employers from refusing to hire, discharging, or discriminating in terms and conditions of employment on the basis of an employee's or applicants being age 40 or older

Civil Rights Act of 1964

Protects employees against discrimination based on race, color, religion, national origin, and sex; also prohibits harassment based on the same protected categories

Same Sex Marriage

Supreme Court found bans on marriage equality to be unconstitutional