Strategies
Describe the role of the Equal Employment Opportunity Commission (EEOC) and its impact on HR responsibilities.
Today, the EEOC conducts enforcement litigation for several federal statutes in addition to Title VII of the Civil Rights Act of 1964. These laws include: The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older; The Americans with Disabilities Act of 1990 (ADA) (Title I and Title V), and its 2008 Amendments (ADAAA), which prohibit disability discrimination in the private sector; The Rehabilitation Act of 1973 (Sections 501 and 505), which prohibit discrimination against qualified individuals with disabilities who work in the federal government; The Civil Rights Act of 1991, which allows for compensatory and punitive damages for violations of Title VII; and The Uniformed Services Employment and Re-employment Rights Act (USERRA), which protects military personnel from employment discrimination. *HR professionals must ensure that their company follows all EEOC guidelines and laws or face punishment. *was created by the Civil Rights Act of 1964 and tasked to enforce federal anti-discrimination statutes
Explain the fundamentals of discrimination based on age.
-anyone 40 years of age or older -expecting persons to do difficult physical tasks that have nothing to do with the job prior to hiring or to determine who is hired
When an employee alleges an age discrimination claim, what defenses to the claim does an employer utilize?
1) age is a bona fide occupational qualification (BFOQ). This defense is usually related to public safety... Courts have found that employment that involves the public safety - bus drivers, pilots, police, and fire fighters - does not violate the ADEA in certain circumstances. 2) same actor defense. applied when the same employer hires and then fires the over 39 plaintiff employee who claims discrimination. The courts have concluded that if the employer was willing to hire a person 40 years of age and older, a permissible inference is present that age was not a motivating factor in ultimate termination of that same employee 3) the failure of the covered employee to adequately perform the essential functions of the job to the employer's satisfaction. Under the ADEA, there is no "reasonable accommodation" for age. Moreover, the condition of being 40 years of age and older is not a disability. 4) Age discrimination may also be established when an employee shows that a facially-neutral company policy has a negative effect on employees covered by the ADEA. The employer defense to disparate impact claims is that a reasonable factor other than age (RFOA) prompted the employment practice.
Name two examples of possible accommodations for religion.
1) allow employees to personally negotiate with other employees to swap work schedules or "cover" for each other 2)
Recommend action steps that comply with the Americans with Disabilities Act (ADA) for a given workplace scenario.
1) the employer must check to see if John is responsible for his problems. For example, John's pain may be the result of not taking authorized medications correctly, not wearing prescribed prosthetics, or not doing requested exercises or therapy. The employer is justified in making inquiries in this regard before making accommodations. 6) The sixth step is continual assessment and evaluation. If, after implementation, John continues to have problems, it may be that the firm must purchase a new chair or significantly alter the work station for John. This will be required as long as there is no undue burden. It may be that a disability makes it impossible for an employee to do a particular task, even with an accommodation. In that case, the employer must look to the employee's suitability for the job. Here the employer must be careful to ascertain whether the accommodation is actually working for the employee, so as to not risk a later claim by the employee that the accommodation was no accommodation at all because it was ineffectual. * it is the employee's duty to seek the accommodation
The student identifies affirmative action in a given scenario.
Executive Order 11246: requires that any federal contract for services with a value over $10,000 must include the following nondiscrimination clause, with which the contractor must comply: "During the performance of this contract, the contractor agrees as follows: (1) the contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause." Rehabilitation Act of 1973: prohibits federal government contractors from discriminating on the basis of disability. This act requires that contractors, including subcontractors, with fifty or more employees and contracts valued at $50,000 or more must take "affirmative action to employ qualified individuals with disabilities. Vietnam Era Veteran Readjustment Assistance Act of 1974: Amendments to the act require that federal contracts entered into after 1 December, 2003, and worth more than $100,000 require contractors and subcontractors to undertake AA for specified categories of veterans, which includes a priority referral requirement for employment openings. This legislation also requires employers to report on the number of current employees who are veterans. * Additionally, the regulations require that for contracts over $50,000, the contractor must prepare a written AA plan within 120 days of the contract start date. Contractors are also required, in any solicitation or job notice to potential employees, to include a statement that all applicants will be given consideration irrespective of any class characteristic, like race or gender. OFCCP may perform audits on contractors to see if the firms are engaged in good faith efforts to remove discrimination's effects. An AA plan must contain three basic requirements: Reasonable self-analysis Reasonable rationale for taking corrective action Reasonable action
Name at least two examples of bona fide occupational qualifications (BFOQ).
Hiring only male attendants to provide towels in the men's locker room of a premium health club. The restaurant "Hooters" hires only female wait staff, in accordance with its branding. A BFOQ for most class characteristics is difficult to establish.
Calculate disparate impact using the 4/5ths rule.
Under this statistical test, any hiring criteria may be deemed discriminatory if the selection rate of a protected class is less than 80 percent of the majority. The following chart illustrates how it works: Courts have not adopted the four-fifths rule as conclusive of disparate impact, but allow it to be used as one factor in a plaintiff's claim of discrimination. Moreover, courts will reject either defenses or claims that use artifice to manipulate numbers in an attempt to satisfy the rule.
What actions should a company take to prevent a reoccurance of discrimination based on race, color, or national origin?
affirmative action
Describe Title VII of the Civil Rights Act of 1964.
anti-employment discrimination provisions of that legislation were included in Title VII It is uncertain what effect Obergefell v. Hodges, 576 U.S. ___ (2015) -- the landmark United States Supreme Court case which found a fundamental right to marry is guaranteed to same-sex couples by the Fourteenth Amendment -- will have on the interpretation of Title VII going forward. Title VII covers employers who have "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person."2 The application of Title VII continues for a year after a firm reaches the critical mass of 15 employers, even if the number of employees in the next year falls below the minimum. Title VII also applies to federal, state and local government employers and employment agencies and labor unions. Title VII's application to employees includes those who are clearly employees but also those who "are susceptible to the kind of unlawful practices that Title VII was intended to remedy," such as independent contractors.4 It includes U.S. citizens employed by U.S. firms abroad, non-U.S. citizens employed in the U.S., and illegal aliens working in the U.S.5 Title VII does not prevent employers' businesses operated in proximity to Native American reservations from preferring Indians over others for jobs, nor does it prevent religious organizations or associations from conducting their affairs.
When an employee makes a specific request regarding religious practices at work, how does an employer identify reasonable accommodations to provide the employee?
anything that doesn't cause undue hardship for the employer...not costly or very impractical
Differentiate between disparate treatment and disparate impact employment discrimination.
disparate treatment: the intentional adverse or unequal treatment of an individual based upon a protected class characteristic...the employer's decision to take some adverse action against an applicant or employee is based upon knowledge and consideration of a protected class characteristic which has little or nothing to do with whether a person can perform the essential functions of a job. direct oral or written comments that are obviously disciminatory disparate impact: not intentional discrimination...the discrimination is a result of something (pre-hiring exam that prevents any group from having an opportunity.) the plaintiff claims not that the employer intentionally discriminated, but rather the employer's procedures, policies, or practices are "not job-related and consistent with a business necessity" and have the effect of creating an unnecessary obstacle to employment opportunity for a specific protected class. Disparate treatment discrimination is directed at an individual, while disparate impact discrimination is directed at a class of persons (Griggs vs. Duke Power) i.e. disparate impact: -Height and weight restrictions - gender/national origin -Language requirements - national origin -Physical strength tests - gender -Educational requirements - race; dress codes - gender/religion -No beard policies - gender/race/national origin/religion
Explain the fundamentals of discrimination based on gender.
harassment directed at an employee because of his or her gender. Therefore, sexual harassment does not necessarily involve sexual motive, sexual behavior, or requests for sexual favors.1 So, if an employer, or its agents, engages in anti-female or anti-male activity towards an employee such that it interferes with the employee's ability to carry out the job, that employer may be guilty of sexual harassment. Conduct may be illegally sex-based where it evinces "anti-female animus, and therefore could be found to have contributed significantly to the hostile environment. i.e. For example, sexual harassment claims may be possible for a male nurse who is regularly berated by coworkers for doing a "woman's job" or a female employee who is continually mocked for not being "tough enough" to handle a traditionally male job, like driving a truck or negotiating with a union.
Describe the Americans with Disabilities Act (ADA).
in 1990 Congress passed the Americans with Disabilities Act (ADA). Senator Tom Harkin, the bill's sponsor and primary author, introduced the bill in the Senate by American Sign Language in honor of his deaf brother. Under the ADA, it became illegal for any firm with 25 (now 15) or more employees to discriminate in employment against a qualified person with a disability. The effect of the ADA was to standardize and nationalize employment protections for the qualified disabled employee in both the public and private sector and to back up those protections with the enforcement power of the EEOC. The ADA adopted the Rehabilitation Act's definition of a disability as: 1) A physical or mental impairment that substantially limits one or more major life activities 2) A record of such impairment 3) Being perceived as having such an impairment the ADA required employers take affirmative steps to provide reasonable accommodation for qualified disabled workers, absent undue hardship. Under the ADA, if an employer is considering two qualified applicants for a job, one of whom is disabled, the employer will violate the ADA if it makes the decision not to hire the disabled person based on the disability or a reluctance to accommodate the disability. the EEOC and the Supreme Court found that major life activities included walking, seeing, hearing, speaking, breathing, working, learning, thinking, standing, lifting, caring for oneself, interacting with others, and sexual reproduction. The ADA does not require an employer to hire a person who is not qualified for a position. As we shall see in section 5, a qualified individual is one who, with or without an accommodation, possesses the skills, talents, education, and other abilities necessary to carry out the essential functions of the job. However, if the disabled person's condition constitutes a direct threat to the safety of others, he or she is considered not qualified for the job.
Explain reverse discrimination and its application.
minority groups are preferred or treated better than a majority group (often to try to prevent discrimination)
Describe the primary types of sexual harassment in employment.
sexual harassment can also be termed gender harassment, but gender harassment isn't always sexual harassment where there is no sexual motive quid pro quo: Sexual harassment where the harasser has the authority, or apparent authority, over the employee to change the employee's employment status is known as quid pro quo sexual harassment. Quid pro quo is the Latin term which indicates a trade of "something for something," or a "favor for a favor." The notion is that the "boss," either explicitly or implicitly, seeks sexual favors in exchange for some positive employment outcome for the employee. The employment outcome arising out of sexual harassment is called "tangible job action." If the harasser has no power to take any tangible job action for or against the employee, there is no quid pro quo harassment. Moreover, if a sexual advance is made by a "boss" and rejected and no tangible job action - which can be directly tied to the request and rejection - is taken, then there is no quid pro quo sexual harassment. Ironically, if after a rejected sexual advance an employee receives an unanticipated favorable job outcome, like an unscheduled raise, a claim of quid pro quo sexual harassment may still exist under the theory that the raise is designed to induce the employee to accept the sexual advance. a demotion or alteration in pay is sufficient to show harassment, whereas a transfer to another job with the same pay, benefits, duties, and opportunity is not. hostile environment: an employee does not allege that a supervisor pressured him or her for sexual favors, but rather that the work environment has become sexually charged with "intimidating, hostile, or offensive" behaviors to the point that it "unreasonably interferes with an employee's work performance." sexual harassment which creates a hostile, intimidating work environment, even if the harassment does not cause a direct financial injury. Must include: 1) Unwelcome conduct towards the victim 2)The objectionable conduct is based upon gender 3)The conduct is sufficiently severe or pervasive to create an abusive working environment 4)The conduct alters the conditions of employment in a way which negatively affects the victim 5)The employer knew or should have known of the unwelcome conduct and took insufficient action to address it *same-gender harassment is sexual harassment *Courts have held conduct that was initially welcome may later become unwelcome. Some courts have held that if the victim has provoked the bad conduct, he or she will be prevented from making a claim of sexual harassment. Other courts have held that a victim's sexual history or behavior is immaterial to a sexual harassment claim. Such was the case in Meritor, where the victim of sexual harassment had repeated voluntary sexual relations with her harasser.
