Unit 2

Punitive Damages Civil Rights Act of 1991

$50,000 (15-100 employees) $100,000 (101-200 employees) $ 200,000 (201-500 employees) $300,000 ( more than 500 employees)

Civil Rights Act of 1991

(1) Shifting burden of proof of employee ane employer (2) Must show which portion of hiring process is discriminatory (3) US citizens working for US company in foreign country extends protection (4) Prohibits Race Norming (5) Avoid punitive damages by showing "mixed motives" but still violates the law 6) Punitive and Compensatory damages allowed for intentional damage but not for disparate impact.

Traditional Remedies for Title VII Cases include

1) Back-Pay 2) Hiring Quotas 3) reinstatement of employees 4) immediate promotion of employees 5) elimination of testing programs 6) creation of special recruitment and training programs.

Employers Age Discrimination following legal justifications

1) Business Necessity BFOQ 2) Good Cause (misconduct, absenteeism, etc.) 3) Bona Fide Seniority System 4) Factor Other than Age

EEOC Steps Handling Cases

1) Charge is filed 2) Attempt at no-fault settlement 3) Investigation by EEOC 4)Attempt to resolve through conciliation 5) Review Case for litigation 6) EEOC decides against litigation... issues Right To Sue for charging party...EEOC recommends litigation initiates legal action by EEOC

Shifting Burden of Proof for Disparate Impact

1) Complaining party has the burden of proof that a particular action has a discriminatory effect. 2) Burden of proof shifts to employer that practice is required by business necessity 3) If employer succeeds shifts back to employee to prove that the explanation simply a pretext for discrimination or other practices have less than discriminatory effect.

Affirmative Action Plan Includes

1) EEO policy statement that explains the company's efforts to ensure that all HR activities are administered in a nondiscriminatory manner. 2) Must identify an EEO/affirmative action administrator who has primary responsibility for monitoring company's progress and resolving complaints. 3) Proportion of current employees by race and gender in each job category.

Claim Age discrimination if

1) Employee is at least 40 years of age 2) Employee was fired, demoted, or adversely affected 3) employee had been performing job well enough to meet the employer's legitimate expectations

EEOC considers an applicant to be

1) Employer has acted to fill a particular position 2) Individual who followed employer's standard procedure for submitting an application 3) Individual has indicated an interest in position.

Guidelines for Responding to EEOC Charge

1) Never ignore the charge 2) Preserve relevant documents 3) Maintain confidentiality 4) Prepare a position statement 5) Take advantage of mediation when it is appropriate.

Violation of Executive Order, Section 503

1) Send Contractor Notice of Violation (describing the violations and the remedies that are required to resolve those violations 2) Predetermination Notice informing the contractor of preliminary findings that the contractors has engaged in (pattern or practice of discrimination) 3) Contractors has right of response to produce a legitimate nondiscriminatory reason of its actions 4) Notice of Alleged Noncompliance-believes that the contractor has violated terms of conciliation agreement, 15 day notice, indicating that enforcement proceedings may be initiated unless contractor demonstrates within 15 working days of receipt of letter that it has not violated its commitment under the agreement 5) Show Cause Letter-ordering it to show cause why enforcement procedures should not be instituted (contractors has 30 days)

Civil Rights Act of 1964 does not protect

1) Sexual Orientation but does protect gender identity

Release for Early Retirement Contains

1) Written in language that is understandable 2) Covers claims under ADEA cannot require employees waive rights under harassment or retaliation 3) advise to consult attorney 4) 21 days to consider whether to sign or 45 days if group termination , revoke release up to 7 days after signing it

Title VII allows gender and race based preference only when:

1) exists a manifest imbalance in traditionally segregated job categories 2) rights of non-minorities are not unnecessarily trammeled 3) preference is of limited duration to attain not maintain racial or gender balance.

OFCCP-Internet Applicant Criteria

1) individual submits an expression of interest in employment electronically 2) contractor considers the individual for employment in particular position 3) individual possesses basic qualifications for position 4) individual at no point withdraws from selection progress.

EEO-1 Report

1) private employers with 100 or more employees 2) Federal Contractors with 50 or more employees

EEO-5

1) school districts with 15 or more employees

Statute Limitations for Title VII Claim

180 Days can be extended for egregious cases that recurred over extended period called tolling.

Time Frame for Complaint under OFCCP

180 days but can extend time when good cause is shown.

Age Discrimination in Employment Act (ADEA)

40 years or older is protected. Applies to private companies with 20 or more employees, governmental employers, employment agencies, and labor unions with 25 more employers. Employee can file complaint within 180 days.

Order Number 4 Requirements

In addition to prohibiting racial discrimination , requires contractors and first-tier subcontractors who 50 or more employees and $50.000 in more contracts to develop written affirmative action plans and to establish numerical goals and timetables for achieving them.

Penalty for Violation of Executive Order, Section 503

Loss of current contracts and debarment-ineligible for future government contracts.

Early Retirement Programs

Okay under ADEA as long as they follow the guidelines, 1) Incentives 2) eligibility criteria must be clear and rational 3) knowing and voluntary, employees must have a clear understanding 4) Normally they will sign a release in compliance with OWBPA.

Executive Order 11246 (Order Number 4)

Prohibits employment discrimination by federal government contractors or subcontractors. Must comply if government contracts exceed $10,000. Applies to banks that have federal funds and colleges and universities who are recipients of federal grant money.

Difference in pay between men and women.

Women are paid 85% of what men earn.

ADEA Exemptions

excludes executives and high policy making employees from coverage allowing these employees to be forced into retirement at age 65 provided held position for two years, entitled to retirement income of $44,000 year exclusive of SS benefits.

OFCCP Multiple Regression Analysis

explore evidence of systematic discrimination in the pay of women and minorities. Impact of compensation on such variables as experience, seniority, education, job level, past performance, race, and sex. Significant beta coefficients for race and sex would suggest the possibility of systematic discrimination.

Executive Order 11748

extended the provisions of Order Number 4 to the federal government, giving federal employees the same protection granted to employees of federal contracts.

Adverse Impact

four-fifth rule... selection rate for any race,sex,or ethnic group which is less than 80% of the rate for the group with highest rate

Jobs for Veterans Act

helps veterans find jobs, encourages employers to hire them, and requires states to streamline veteran employment services.

EEO Reporting

how many employees of each sex and race are in the different 10 job categories

Vocational Rehabilitation Act of 1973

intended to increase employment opportunities for disabled people and to prevent employment discrimination against people with a "handicap". Applies to government contractors and subcontractors holding government contracts(subcontracts) of $10,000 or more. Contractors and subcontractors with $50,000 or more in contracts and 50 or more employees are required to develop written affirmative action plans for hiring and promotion the disabled. Enforced by OFCCP.

Disparate Treatment

intent to discriminate , discriminatory motive, lead to direct evidence of discrimination.

Focus Job Area

job category that falls outside the acceptance range treated as a potential problem area where minorities or women are concentrated, under-represented, or restricted from working because of their race or sex.

Job Group Analysis

jobs are grouped or categorized based on whether they have similar content, wage rates, and opportunities for advancement.

Workforce Analysis

listing of all job titles in the company as they appear on payroll records, ranked from lowest-paid job title to the highest-paid title within each department or organizational unit. Total number of employees must be defined for each job title according to their race and gender. Needed for affirmative action plan.

Uniform Guideline on Employment Selection Procedures

maintain accurate records of job applicants and whether they were hired or rejected. Employers are expected to analyze data for evidence of adverse impact. Maintain data on the gender and race of applicants.

Vietnam Era Veterans Readjustment Assistance Act

prohibits discrimination against disabled veterans and Vietnam Era veterans (whether disabled or not) by federal contractors with $25,000 or more. Requires employers with $100,000 or more in contracts and 50 or more employees to take affirmative actions in employing and advancing disabled veterans and qualified veterans of the Vietnam Era. Enforced by OFFCP . Employers must list all job openings with the appropriate local state employment office nearest the facility(except executive and top management jobs or positions filled by promotions within)

Civil Rights Act of 1964 Title VII

prohibits discrimination based on race,color, religion, sex, or national orgin. Protects against racial and sexual harassment. Amended in 1978 to add pregnancy as a protected class. Applies to employers with 15 or more employees.Established the EEOC (Equal Employment Opportunity Commission). Requires employers to compile and keep records to determine if unlawful employment practices have been committed.

Pregnancy Discrimination in Employment Act

requires employers to treat pregnancy,childbirth, other related medical conditions same as other health-related issues with respect to benefits and leave. Employers are free to fire, downsize, and refuse to hire pregnant women as long as they treat them the same as men in comparable situations.

Constructive Discharge

requiring them to perform difficult, degrading, or boring jobs, employers can force older workers to quit.

Disparate Impact

unintentional discrimination, (i.e tests). Significantly reduce number of minorities or females employed in a job category. Unless practices can be justified as necessary for business. Not necessary to establish discriminatory motive. Remedies to not include punitive damages.

Adverse Impact Can Remain When

valid predictor of job performance... consistent with business necessity (i.e promotional exam)

Equal Employment Act of 1972

Allowed Class Action Suits, one person bring suit on behalf if other employees.

Right to Sue

Allows person in EEOC complaint to pursue the case along without EEOC.

Veteran of Vietnam Era

Anyone who served on active duty for more than 180 days between August 5th, 1964 and May 7, 1975 and was discharged with other than dishonorable discharge.

Griggs. v Duke Power Company

Disparate Impact case. Supreme Court ruled that selection procedures that exclude disproportionate amount of minorities are illegal when employer cannot demonstrate procedure is related to safe and efficient operation of company.

BFOQs

Bona Fide Occupational Qualifications. allows employers to discriminate based on religion, sex, and national orgin. Can never be used for race or color

Section 1981

Civil Rights Act of 1866 applies to all employers and does not contain a minimum. number of employees before coverage exists. No caps on the amount of compensatory and punitive damages. must prove employer engaged in intentional discrimination. Four years to file case.

Make Whole Relief

Common elements include award of the position the individual wrongfully denied, back-pay with interest, and retroactive seniority.

Hardison V Trans World Airlines

Court decision that TWA had made reasonable efforts to accommodate the employee and established 4 guidelines that religious accommodations for employee should not require employers to...1) sacrifice rights of other workers 2) breach collective bargaining agreement 3) suffer loss in work unit efficiency 4) Should not have to pay overtime for another worker.

Cohort Anaysis

Disparate treatment can be inferred by comparing treatment of similarly situated individuals or groups. (i.e. laying off minority employees, did they also lay off non-minorities).

Reverse Age Discrimination

Does not violate ADEA, can treat older workers more favorable than younger workers.

Ash V Tyson Foods Inc

Easier to prove racial discrimination with this case....any form of derogatory speech even neutral words expressed in a hostile or intimidating way can constitute harassment

Retaliation

Title VII and other anti-discrimination laws prohibit employee will be mistreated or lose their job for complaining. Even if person's status, pay, hours, and benefits, did not change and even though the person did not suffer monetary loss. (i.e. moved to another store, a different shift, etc.)

Individual with Handicaps Excludes

alcoholics or drug abusers whose current use of alcohol or drugs prevents an individual from performing duties of the job could constitute a direct threat to property or safety of others.

Underutilization Analysis

comparison of percentages of minorities and women in each job group with their respective availability in the surrounding labor force. Exists when % available in the labor force exceeds % employed in each job group.

Office of Federal Contract Compliance Programs (OFCCP)

created by Executive Order 11246, agency within DOL. Responsible for monitoring the affirmative action plans of federal contractors and subcontractors as required by Executive Order 11246, Vietnam Era Veterans Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation Act of 1973.

Equal Employment Opportunity Commission (EEOC)

created to enforce Civil Rights Act of 1964 through persuasion and conciliation ... power was extended with EEO Act of 1972 bring lawsuits in behalf of person.... Wide range of investigative powers. Enforcement responsibilities for Title VII, ADEA, and ADA. Has considerable power to issue guidelines, collect reports, solicit charges of discrimination, investigate charges, conciliate an agreement, assist plaintiff in litigating case, but cannot issue directly enforceable orders.

Affirmative Action Plans

defines the good faith efforts an employer is expected to make to hire and promote minorities, women, Veteran era veterans, disabled veterans, and people with disabilities. (federal contractors) DOL provides useful compliance assistance.

Availability Analysis

determining the number of minorities and women in the external labor market who are qualified for employment in the company's job groups.

Rightful Place

employees who are victims of discrimination are entitled to be made whole and be restored which includes job, seniority level, salary level.

Older Workers Benefit Protection Act (OWBPA)

equal benefit or equal cost principle, lawful for employer to reduce the life insurance coverage of older workers if their premiums are higher.

McDonnell Douglas V Green

establish discrimination... (1) Person belongs to protected minority (2) Person applied and qualified for job opening (3) despite qualifications...person rejected (4) after person rejected, position remained open and employer continued to seek applicants w similar qualifications.

Impact Ratio Analysis

examines the percent of minorities and females in each job category and compares them with the percentages in the surrounding labor force.