the most important federal anti-discrimination laws are: title vii of the civil rights act of 1964....

The most important federal The most important federal anti-discrimination laws are:anti-discrimination laws are:Title VII of the Civil Rights Act of

1964.The Age Discrimination in

Employment Act.The Equal Pay Act.The Americans with Disabilities

Act.© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

Title VII prohibits discrimination in Title VII prohibits discrimination in employment on the basis of race, employment on the basis of race, sex, color, religion, and national sex, color, religion, and national origin. “Sex” now includes origin. “Sex” now includes pregnancy.pregnancy.Applies to employers involved with

interstate commerce with 15 or more employees.

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3

In addition to prohibiting In addition to prohibiting religious discrimination, religious discrimination, employers must reasonably employers must reasonably accommodate an employee’s accommodate an employee’s religious practices.religious practices.

EEOCEEOC: : monitors compliance monitors compliance with Title VIIwith Title VII..


““Disparate-Treatment” Disparate-Treatment” Discrimination. Discrimination. Applicant must Applicant must prove:prove:Is a member of a protected class;Applied, qualified , rejected for job; Employer continued to seek applicants. Burden then shifts to employer who

must articulate a legal reason for not hiring.


““Disparate Impact” Disparate Impact” Discrimination:Discrimination:Occurs when a protected group of

people is adversely affected by an employer’s practices, procedures, or tests, even though they do not appear to be discriminatory.


Disparate Impact Disparate Impact Discrimination (cont’d).Discrimination (cont’d).Pool of Applicants Test: plaintiff

shows percentage of the protected class in employer’s workforce does not reflect percentage in local labor market.


Disparate Impact Disparate Impact Discrimination (cont’d).Discrimination (cont’d).Selection Rates Test: plaintiff

compares selection rates of members of protected class with nonmembers in employer’s workforce. According to EEOC, less than 80% may show disparate impact.


Title VII prohibits Title VII prohibits employment policies or employment policies or intentional/ negligent intentional/ negligent discrimination on basis of discrimination on basis of race, color or national origin. race, color or national origin.


Policies that discriminate are Policies that discriminate are illegal, unless (except for illegal, unless (except for race) they have a substantial race) they have a substantial demonstrable relationship to demonstrable relationship to realistic qualifications for job. realistic qualifications for job.


Reverse” Discrimination: Title VII also protects against discrimination against majority group individuals, such as white males. Ricci v. DeStefano (2009) : Supreme

Court held City of New Haven’s testing and promotion procedures were race-conscious and discriminatory against white firefighters, violating Title VII.


Employers must “reasonably Employers must “reasonably accommodate” the “sincerely accommodate” the “sincerely held” religious practices of its held” religious practices of its employees, employees, unlessunless to do so to do so would cause undue hardship would cause undue hardship to employer’s business.to employer’s business.


Employers are prohibited from Employers are prohibited from classifying jobs based on classifying jobs based on gender, gender, unlessunless employer can employer can prove gender is essential to prove gender is essential to the job.the job.Pregnancy Discrimination Act.Equal Pay Act (1963). Lilly Ledbetter Fair Pay Act (2009).


Occurs when an employer Occurs when an employer causes working conditions to causes working conditions to be so intolerable that a be so intolerable that a reasonable person would feel reasonable person would feel compelled to quit.compelled to quit.An employee can be

“constructively discharged” but still leave voluntarily.


Proving Constructive Discharge.Proving Constructive Discharge.Plaintiff must present objective

proof of intolerable working conditions, which employer knew about and failed to correct.

Employee’s resignation must be a foreseeable result of working conditions.


Title VII protects employees Title VII protects employees against sexual harassment in against sexual harassment in the workplace. the workplace.

There are currently two forms There are currently two forms of sexual harassment:of sexual harassment:Quid Pro Quo. Hostile Work Environment.


Quid pro quo Quid pro quo sexual sexual harassment involves harassment involves demands for sexual favors demands for sexual favors are demanded in return for are demanded in return for job opportunities, promotions, job opportunities, promotions, salary, increases or other salary, increases or other tangible benefits. tangible benefits.


Occurs when workplace is Occurs when workplace is permeated with discriminatory permeated with discriminatory intimidation, ridicule, insult so intimidation, ridicule, insult so severe to alter the conditions severe to alter the conditions of the victim’s employment of the victim’s employment and create an abusive working and create an abusive working environment.environment.


For employer to be liable for a For employer to be liable for a supervisor’s sexual supervisor’s sexual harassment, a supervisor harassment, a supervisor must have taken a must have taken a tangible tangible employment actionemployment action against against the employee. the employee.


Employer’s Defense:Employer’s Defense:The Ellerth / Faragher Affirmative

Defense is based on two 1998 Supreme Court decisions. Defense has two elements:

(1) Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior, and


Ellerth/Faragher Defense Ellerth/Faragher Defense (cont’d):(cont’d): (2) Plaintiff-employee must have

unreasonable failed to take advantage of preventative or corrective opportunities to avoid harm.

If an employer can prove both elements, he will not be liable for supervisor’s harassment


Retaliation by Employers.Retaliation by Employers.CASE 22.1 Burlington Northern and Santa Fe Railroad Co. v. White (2006). Title VII’s anti-retaliation ban extends beyond workplace-related acts. Reassignment duties were adverse to White.


Harassment by Co-Workers and Harassment by Co-Workers and OthersOthers. Employer generally liable . Employer generally liable only if employer knew or should only if employer knew or should have known and failed to take have known and failed to take action. action. Notice to supervisor is sufficient

under agency law. Employers may also be liable for harassment by non-employees.


Same-Gender HarassmentSame-Gender Harassment. . In 1998, Supreme Court held in In 1998, Supreme Court held in Oncale v. Sundowner Offshore Oncale v. Sundowner Offshore ServicesServices that Title VII that Title VII prohibitions against sexual prohibitions against sexual harassment extended to same-harassment extended to same-sex harassment. Easier to prove sex harassment. Easier to prove when harasser is homosexual.when harasser is homosexual.


Online Harassment:Online Harassment:Hostile work environment created

using company chat, blogs, email.Employers can avoid liability with

prompt remedial action.Employees may be discharged for

using company computers to distribute offensive material to coworkers.


Liability may be extensive. Liability may be extensive. Plaintiff may receive:Plaintiff may receive:Reinstatement.Back Pay.Retroactive Promotions; andDamages.


The Age Discrimination in The Age Discrimination in Employment Act (ADEA) Employment Act (ADEA) protects individuals over the protects individuals over the age of 40 from workplace age of 40 from workplace discrimination that favors discrimination that favors younger workers. younger workers.


ProceduresProcedures under the ADEA. under the ADEA.Plaintiff must show discrimination

was THE reason for adverse employment action.

CASE 22.2 Mora v. Johnson Memorial Foundation, Inc. (2010). What was the ‘disputed question of material fact’ the court referred to?


Replacing Older Workers with Replacing Older Workers with Younger Workers. Younger Workers. Employee Employee must prove that discrimination must prove that discrimination was based on age bias. The was based on age bias. The bigger the age gap the more bigger the age gap the more likely the bias.likely the bias.

State Employees Not Covered State Employees Not Covered by the ADEA.by the ADEA.


The Americans with Disability The Americans with Disability Act (ADA) requires employers Act (ADA) requires employers to offer “reasonable to offer “reasonable accommodation” to employees accommodation” to employees or applicants with a disability or applicants with a disability who are otherwise qualified for who are otherwise qualified for the job they hold or seek.the job they hold or seek.


To prevail, plaintiff must show:To prevail, plaintiff must show:She has a “disability.”She is otherwise qualified for the

employment in question; andShe was excluded from employment

solely because of the disability. Plaintiff must first exhaust her Plaintiff must first exhaust her

claim through the EEOC process.claim through the EEOC process.


ADA defines disability as:ADA defines disability as:Physical or mental impairment

that “substantially limits one or more of major life activities; or

A record of such impairment; or Being regarded as having such an

impairment.


2008 Amendments reverse 2008 Amendments reverse Supreme Court’s narrow Supreme Court’s narrow definition of disability.definition of disability.CASE 22.3 Rohr v. Salt River Project Agricultural Improvement and Power District (2009). Diabetes is a disability if it significantly restricts eating.


Undue Hardship: Undue Hardship: If an employee can perform the

job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made.

Examples: wheelchair ramps.


Job Applications and Physical Job Applications and Physical Exams.Exams.Modifications to applications and

selection process so those with disabilities can compete.

Employers are restricted on pre-hiring questions and physical exams.


Substance Abusers: Substance Abusers: oonly nly FORMER drug users completed FORMER drug users completed or going through supervised or going through supervised drug rehabilitation programs drug rehabilitation programs qualify as “disabled.”qualify as “disabled.”

Health Insurance Plans: Health Insurance Plans: equal equal access to health care.access to health care.


Protects individuals based on Protects individuals based on associations with associations with otherother disabled disabled persons. persons. To prevail, plaintiff To prevail, plaintiff must show she was: must show she was: (1) qualified for the job, (2)

subjected to an adverse employment action, and (3) known by her employer to have a relative or an associate with a disability.


There are four basic types of There are four basic types of defenses to employment defenses to employment discrimination claims. discrimination claims. Business Necessity.Bona Fide Occupational

Qualification.Seniority Systems. After-Acquired Evidence.


Requires employer to Requires employer to demonstrate a job qualification demonstrate a job qualification is reasonably necessary to the is reasonably necessary to the legitimate conduct of the legitimate conduct of the employer’s business.employer’s business.Business necessity is a defense to

disparate impact discrimination.


BFOQ defense requires an BFOQ defense requires an employer to show a particular employer to show a particular skill is necessary for the skill is necessary for the performance of a particular job.performance of a particular job.The BFOQ defense is used in cases of disparate treatment discrimination.


Conditions the distribution of Conditions the distribution of job benefits on the length of job benefits on the length of time one has worked for an time one has worked for an employer.employer.Can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws.


Evidence of misconduct, Evidence of misconduct, committed by an employee who committed by an employee who is suing an employer for is suing an employer for employment discrimination.employment discrimination.Uncovered during the process of

discovery conducted in preparation for a defense against the suit.

Not an absolute defense for employer.


Designed to “make up” for past Designed to “make up” for past patterns of discrimination by patterns of discrimination by giving preferential treatment to giving preferential treatment to protected classes.protected classes.

Constitutionality of Affirmative Constitutionality of Affirmative Action Programs. Action Programs. May violate Fourteenth

Amendment’s equal protection.© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 43

Constitutionality (cont’d).Constitutionality (cont’d).Affirmative action program is

constitutional only if it attempts to remedy past discrimination and does not make use of quotas or preferences.


Affirmative Action in Schools.Affirmative Action in Schools.Generally, program that

automatically awards minority students specified number of points is unconstitutional.


the most important federal anti-discrimination laws are: title vii of the civil rights act of 1964....

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