eeo law. copyright 2000 - south-western college publishing module 8 - 1 topics _ scope of title vii...

EEO Law

Copyright 2000 - South-Western College Publishing Module 8 - 2

Topics

Scope of Title VII Role of the EEOC Judicial Interpretation


Types of Discrimination

Racial Discrimination Religious Discrimination Sex Discrimination National Origin Discrimination


EEOC Compliance Process

• Filing of charge within 180 days• EEOC investigation of charge• Determination of reasonable cause• Conciliation effort• Suits by charging party and/or EEOC and

the Justice Department• Implications of EEOC’s compliance process


EEOC Investigation of Charge

• EEOC interview of charging party and company officials

• Examination of company records

• EEOC can exercise subpoena powers if necessary to obtain cooperation from the parties during the investigation


Determination ofReasonable Cause

A determination of reasonable cause to believe the charge is meritorious will result in an EEOC effort to conciliate

A finding of no reasonable cause will result in the EEOC dismissing the charge


Conciliation effort

EEOC will attempt to provide make whole relief to charging party (back pay, reinstatement, etc…)

EEOC will attempt to eliminate discriminatory practice giving rise to the charge

Failure of conciliation may lead to suits by charging party, the EEOC, or the Justice Department


Implications of the process

Time consuming Multiplicity of lower court involvement

renders difficult uniform evolution of EEO law

Lack of resources limits EEOC’s capacity to file suit


Remedies

Pay Damages

CompensatoryPunitive


Charging Party’s Burden of Proof - Disparate Treatment (McDonnell Douglas v. Green)

During Hiring and Promotion:

• Proving the prima facie case• Belongs to a protected group• Applied for job vacancy• Despite qualifications was rejected• After rejection the employer continued to

screen or employ other applicants


Overcoming Presumption of Discrimination -

Disparate Treatment

• Claimant not qualified• Others more qualified• Qualified but….(poor references,

lack of seniority, etc….)


Proving Pretext

• Evidence of hostility towards minorities (e.g. use of racial epithets, articulation of policy to limit minority employment)

• Similarly situated minority employees treated more advantageously

• Employers use of evasive, conflicting, or imprecise reasons for rejecting minority candidate


Proving Discrimination in Disparate Impact Cases

• Charging party has initial burden of proof• Complainant must demonstrate neutral

policy disproportionately rejects protected class members

• Proof - shown by statistics• Complainant need not prove hostile

employer motive


Overcoming the Presumption of Discrimination -

Adverse/Disparate Impact

• Charging party’s statistics are in error• Test/policy is valid (job related) and

necessary• Reduce requirements to validate criteria

where jobs have an immediate impact on public safety


EEOC Guidelines on Uniform Selection

OK. You can use the procedure. Thereare no Title VII implications.

Has the test, device, or procedure been found valid? (Does it predict job performance?)

Is there a valid alternative test with no, or less, adverse impact?

START: An employee selection device is utilized

Does it have an adverse impact on a Protected group?

Is there an adverse impact in the overall result of all selection devices used? (The bottom line.)

STOP! Your use of the original procedure violatesTitle VII. In the future, use the valid alternative.

Federal enforcement agencies arenot likely to pursue action, but

individuals may still seek recourse.

STOP! Your use of this procedureviolates Title VII. Nest time try

another selection device.

Is the use of the procedure necessary forthe safe and efficient operation of the

organization?

OK. Use the procedure despite its adverseimpact on a protected group.

STOP!Your use

of theprocedureviolated

Title VII.

YES

YES

YES

YESYES

NO

NO

NO

NO NO


MEANS OF ACCOMODATION

• Use of substitutes• Performance of assignment at

different times• Transfer of employee


MEANING OF UNDUE HARDSHIP

• The extent of the hardship must be more than de minimus cost• This standard has to be made on a case by case basis with due regard

to:• Number of employees seeking accommodation• Size of the employer• Nature of an employer’s operation

• Employer can be required to bear administrative costs necessary for providing the accommodation: Bookkeeping costs associated with payroll substitution changes

• Undue hardship is not demonstrated by speculation on hardships that may arise


PRINCIPLES OF ACCOMMODATION

• The individual employee seeking religious accommodation has an obligation to cooperate with the employer

• Personal preference is not to be confused with personal religious creed• A union need not modify the seniority provisions of its collective

bargaining agreement in order to accommodate the religious practices of an employee

• An employee seeking religious accommodation must give adequate notice to the employer of his/her need for accommodation.

• When an employee offer to work his/her Sabbath in emergencies he/she does not give up their right of accommodation in the future.

• Employees may suffer financial sacrifices due to the working of the accommodation mechanism


ESTABLISHING A BONA FIDE OCCUPATIONAL QUALIFICATION

(BFOQ)

l Sex is a BFOQ only where the employer can demonstrate:• The the essence of the business operation

would be undermined by the employment of members of the opposite sex.

• That all or nearly all member of the opposite sex would not be able to perform.


BFOQ STANDARD WILL ONLY BE MET IN A LIMITED NUMBER OF JOBS

• When necessary for considerations of authenticity e.g. actors and actresses

• BFOQ cannot be established on the basis of customer preferences

• Fetal protection policies do not serve as a basis for excluding women from positions


PREGNANCY SHOULD BE TREATED LIKE ANY OTHER DISABILITY

• DISCRIMINATION ON BASIS OF PREGNANCY IS UNLAWFUL• INDIVIDUALS MUST BE JUDGED ON THE BASIS OF THEIR

ABILITY TO PERFORM• PREGNANCY SHOULD BE TREATED LIKE ANY OTHER

DISABILITY• COMMENCEMENT OR DURATION OF MATERNITY LEAVE TO BE

HANDELED IN ACCORDANCE WITH REGULAR COMPANY POLICY REGARDING OTHER LEAVES

• NO REQUIREMENT TO PAY FOR HEALTH INSURANCE BENEFITS FOR ABORTION


SEXUAL HARRASSMENT

l Nature of Sexual Harassment• Unwelcome sexual advances• Requests for sexual favors• Verbal, visual, or physical conduct of a

sexual nature


Sexual Harassment Violates Title VII when:

l It explicitly or implicitly is made a condition of employment• The employee is informed or led to believe that

submission is a condition for the receipt of favorable working conditions, or

• The employee’s rejection of sexual overtures results in his/her being the victim of retaliation

• Such conduct interferes with the person’s ability to work or creates an intimidating, hostile, or offensive working environment


RESPONSIBILITY OF EMPLOYER FOR CONDUCT OF STAFF

• Organization will always be held liable if supervisors engage in quid pro quo harassment

• Organization will be liable for the hostile environment harassment engaged in by supervisors that has severe or pervasive unless employer can demonstrate that:• It exercised reasonable care to prevent and promptly

correct the sexually harassing behavior and• The employee unreasonably failed to take advantage of

any preventive or corrective opportunities to avoid harm


ORGANIZATION WILL BE RESPONSIBLE FOR SEXUAL HARASSMENT OF EMPLOYEE BY OTHER

EMPLOYEES IF:

• Employer knew or should have known of conduct

• Failed to take corrective action


STEPS TO INSURE COMPLIANCE

• Develop written policy spelling out organization’s position that sexual harassment either by supervisors or employees

• Train management and employees• Take aggressive disciplinary action against

offenders• Keep records showing disciplinary action• Respond quickly and affirmatively to charges

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