Employment Law • Dale J. Dwyer, Ph.D. • 2008

Discrimination in Employment: Understanding the Legalities

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Discrimination in Employment:Understanding the Legalities

In this session we will:

> Look at how discrimination spurred the legislation in the 1960’s and 1970’s that created the notion of Equal Opportunity.

> Examine several landmark cases and the resulting laws that employers must abide by.

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History of EEO Legislation

• Before 1964, there was a history of discrimination in the U.S., primarily against people of color and women.

• Dr. Martin Luther King, Jr., Rosa Parks, and the cities of Selma and Birmingham (AL), and Memphis (TN) played pivotal roles in bringing racial discrimination to the attention of U.S. lawmakers and President John F. Kennedy.

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What is the General Intent Of EEO Law?

• After President Kennedy’s assassination, President Johnson signed the Civil Rights Act of 1964 into law. This law was intended to address societal beliefs that people are different (or not equal) because of physical characteristics.

• As employers, we want to hire, develop, and retain excellent employees. However, we cannot assess a person’s performance by looking at their physical appearance.

• We can get an idea of potential job performance only by using valid tests that assess the abilities needed for the task.

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Common Mistakes in Hiring

• Asking interview questions about: – A candidate’s national origin.– Marital status.– Perceived or obvious disabilities.

• Making assumptions about:– Job abilities based on gender, race or age.

– The commitment of a parent (particularly mother) to a job.

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Questions that Illicit Information that Could Be Used in a Discriminatory or Illegal Manner

• “This job requires a lot of overtime. Will that conflict with your childcare arrangements?”

• “Have you ever had attendance or performance problems in your previous position because of your [sight, hearing, physical] impairment?”

• “We have mostly men in that position. Do you foresee having trouble with establishing your authority with them because you’re a woman?”

• “Have you ever filed a workers’ compensation claim?”

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What Is A “Test”?

• A “test” is anything that is used to make a decision about an employee or a potential employee

• For this class, a “test” is anything an employer may use to make a decision about hiring, promotion, discipline, termination, salary or wages, training participants, etc.

• All employment decisions (“tests”) are subject to EEO laws and enforced by the EEOC.

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Relevant Anti-Discrimination Laws

• Equal Pay Act of 1963

• Title VII of Civil Rights Act of 1964

• Age Discrimination in Employment Act of 1967

• Vietnam Era Vets Readjustment Act of 1974

• Pregnancy Discrimination Act of 1978

• Americans with Disabilities Act of 1990• Revision of the Civil Rights Act (1991) (including

references to unlawful harassment)

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Who the Laws Apply To

1-14 Employees:• All wage orders• State anti-discrimination laws15-25 Employees:• Federal anti-discrimination laws• ADA• Drug Free Workplace Act• COBRA50+ Employees:• Filing EEO• Executive Order 11246 (Affirmative Action)• Rehab Act of 1973• FMLA100+ Employees:• Affirmative action plan (government contractor)

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What Does the Law Say About This?

• Karen Logan comes into her supervisor’s office, complaining that she’s been excluded from the rotation schedule for driving the supply truck. Ed, her supervisor, is surprised and says that he figured she wouldn’t want to be included. “Why not?” Karen asks. “Well, it’s a big truck and I thought it might be too much for you to handle. I mean, driving a big truck isn’t exactly a job for a woman, is it?” asks Ed.

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What Does the Law Say About This?

• Helen Thomas is meticulous about enforcing her department’s attendance policy, and has fired more than one employee for repeated violations of the rules. She recently fired Jeff Lewis, an African-American employee, for excessive absences, and Lewis sued the company for racial discrimination.

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Discrimination Terms

• Adverse impact (Also “disparate impact”): Unintentional effect on protected group.

• Adverse treatment (Also “disparate treatment”): Intentional effect on a member of a protected group.

• Bona fide occupational qualification: A characteristic that is necessary to successfully perform the job.

• Business necessity: An overriding business purpose for the discriminatory practice.

• Prima facie case: Presenting enough evidence to suggest a discriminatory practice occurred.

• Burden of proof: The party who has to prove that the practice is discriminatory or non-discriminatory.

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How to Develop a Disparate Impact Case

Prima facie case is made by the plaintiff, who:

• Points to a specific test; AND

• Shows that there is under-representation of relevant labor market (“stock statistics”); AND/OR

• Shows violation of the “4/5 rule” (“flow statistics”).

Burden of proof is on the defendant, who:

• Rebuts with data showing compliance with either adequate representation of relevant labor market or “4/5 rule”; AND/OR

• Rebuts with BFOQ or Business necessity defenses; AND/OR

• Rebuts with test validity data.

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How to Develop a Disparate Treatment Case

Prima facie case is made by the plaintiff, who demonstrates the following:

1. Membership in a protected group; AND

2. Applied and was qualified for job; AND

3. Was rejected despite qualifications; AND

4. Employer continued with applicant search.

Burden of proof is on the defendant, who:

• Rebuts with a legitimate, non-discriminatory reason for the rejection (had better provide objective data!) or establishes a BFOQ; AND/OR

• Rebuts with test validity data.

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Let’s Practice

• For the next class, you will be given a summary of a real discrimination case to read.

• You will be assigned as either the plaintiff or the defendant in that case.

• Prepare the prima facie case (if you are the plaintiff) or the rebuttal (if you are the defendant) for the type of case you believe it is (either disparate impact or disparate treatment).

• You will be given three minutes for your case-in-chief and one minute to rebut the other side’s claims.