Chapter 19 Employment Discrimination

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Chapter 19Employment Discrimination
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Learning Objectives

• Generally, what kind of conduct is prohibited by
  Title VII of the Civil Rights Act?
• What is the difference between disparate-treatment
  discrimination and disparate-impact
  discrimination?
• What remedies are available under Title VII?
• What are three defense to claims of employment
  discrimination?

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Introduction

• The most important federal 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.

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Title VII Of The Civil Rights Act of 1964

• Title VII prohibits discrimination in employment
  on the basis of race, sex, color, religion, and
  national origin. Sex now includes pregnancy.
• In addition to prohibiting religious
  discrimination, employers must reasonably
  accommodate an employees religious practices.
• Enforcement of Title VII by EEOC.

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Disparate Treatment vs. Impact Discrimination

• Disparate-Treatment Discrimination. For prima
  facie case, applicant must prove
• She is member of a protected class
• Applied, qualified and rejected for job and
• Employer continued to seek applicants.
• Disparate Impact Discrimination.
• No-protected applicant sues Employer who tries to
  integrate members of protected classes into
  workplace.

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Race, Color and National Origin

• Title VII prohibits employment policies or
  intentional/ negligent discrimination on basis of
  race, color or national origin.
• Company policies that discriminate are illegal,
  unless (except for race) they have a substantial
  demonstrable relationship to realistic
  qualifications for job.

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Religion

• Employers must reasonably accommodate the
  sincerely held religious practices of its
  employees, unless to do so would cause undue
  hardship to employers business.

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Discrimination Based on Gender

• Title VII prohibits sex discrimination in the
  work place.
• Employers are prohibited from classifying jobs as
  male or female or from advertising such, unless
  employer can prove gender is essential to the
  job.
• Plaintiff must show gender was determining factor
  in hiring, firing or lack of promotion.

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Gender Discrimination

• Two types of sex discrimination
• Differential treatment.
• Sexual harassment, which itself, exists in two
  varieties
• Hostile Work Environment.
• Quid Pro Quo.

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Sexual Harassment

• U.S. Supreme Court has interpreted Title VIIs
  prohibition against sex discrimination to include
  a prohibition against sexual harassment.
• There are currently two forms of recognized
  sexual harassment
• Quid Pro Quo
• Hostile Work Environment.

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Hostile Work Environment

• Hostile environment occurs when workplace is
  permeated with discriminatory intimidation,
  ridicule, insult so severe to alter the
  conditions of the victims employment.
• The conduct in the workplace must be offensive to
  a reasonable person as well as to the victim, and
  it must be severe and pervasive.

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Harassment by Supervisors

• Quid Pro Quo harassment involves the demands for
  sexual favors by a supervisor from a subordinate,
  in exchange for some workplace benefit.
• See Faragher v. City of Boca Raton (1998) and
  Burlington Industries v. Ellerth (1998).
• Under certain conditions, an employer may be
  liable for the quid pro quo harassment committed
  by its supervisory employees.

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Harassment by Co-Workers

• Employer generally liable only if employer knew
  or should have known and failed to take action.
• Employee notice to supervisor is notice to
  Employer under agency law.
• Employers may also be liable for harassment by
  non-employees.
• Same-sex harassment also violates Title VII.

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Online Harassment

• Company email systems
• Company chatrooms
• Posting sexually explicit images on company
  computer systems, screen savers, etc.
• Employees will generally not be liable if prompt
  action taken.

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Remedies under Title VII

• Liability may be extensive. Plaintiff may
  receive
• Reinstatement.
• Back Pay.
• Retroactive Promotions and
• Damages.

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Equal Pay Act of 1963

• The EPA amends the Fair Labor Standards Act to
  prohibit gender-based discrimination in wages
  paid for similar jobs performed under similar
  conditions.
• Pay differentials for jobs with the same or
  similar jobs can be justified on the basis of
  seniority, merit, a piece-work system, or any
  factor other than gender.

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Discrimination based on Age

• The Age Discrimination in Employment Act (ADEA)
  protects individuals over the age of 40 from
  workplace discrimination that favors younger
  workers.
• Plaintiff must show
• He was member of protected age group
• Was qualified for the position from which he was
  discharged, and
• Was discharged under circumstances that inferred
  discrimination

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Discrimination based on Disability (ADA)

• The Americans with Disability Act (ADA) requires
  employers to offer reasonable accommodation to
  employees or applicants with a disability who
  are otherwise qualified for the job they hold or
  seek.
• The duty of reasonable accommodation ends at the
  point at where it becomes an undue hardship.

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ADA

• To prevail on a claim under ADA, plaintiff must
  show she
• Has a disability.
• Is otherwise qualified for the employment in
  question and
• Was excluded from employment solely because of
  the disability.
• Plaintiff must first exhaust administrative
  relief with EEOC.

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ADA What is a Disability?

• 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.
• Determination is decided on a case-by-case basis.

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ADA Reasonable Accommodation

• If an employee with a disability can perform the
  job with reasonable accommodation, without undue
  hardship on the employer, the accommodation must
  be made.
• Examples wheelchair ramps, flexible working
  hours, improved training materials.
• Job Applications and Pre-Employment Physical
  Exams.

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Defenses to Claims of Discrimination

• There are four basic types of defenses to
  employment discrimination claims.
• Business necessity.
• Bona fide occupational qualification.
• Seniority Systems.
• After-acquired evidence of employee misconduct.

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Business Necessity

• The business necessity defense requires the
  employer to demonstrate that the imposition of a
  job qualification is reasonably necessary to the
  legitimate conduct of the employers business.
• Business necessity is a defense to disparate
  impact discrimination.

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Bona Fide Occupational Qualification

• The bona fide occupational qualification (BFOQ)
  defense requires an employer to show that an
  particular skill is necessary for the performance
  of a particular job.
• The BFOQ defense is used in cases of disparate
  treatment discrimination.

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Seniority Systems

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

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After-Acquired Evidence

• After-acquired evidence refers to evidence of
  misconduct, committed by an employee who is suing
  an employer for employment discrimination, that
  is uncovered during the process of discovery
  conducted in preparation for a defense against
  the suit.
• While it may serve to limit employee recovery, it
  does not act as an absolute defense for the
  employer.

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Affirmative Action

• Affirmative action programs go one step beyond
  non-discrimination they are designed to make
  up for past patterns of discrimination by giving
  preferential treatment to protected classes.
• AA has led to reverse discrimination cases
  which violate equal protection.
• University of California v. Bakke (1978).
• Adarand Constructors v. Pena (1995).

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The Hopwood Case

• In 1996, two white law school applicants sued the
  University of Texas at Austin when they were
  denied admission. The Fifth Circuit opined
• Diversity fosters, rather than minimizes, the
  use of race. It treats minorities as a group,
  rather than as individuals. It may further
  remedial purposes but, just as likely, may
  promote improper racial stereotypes, thus fueling
  racial hatred. Hopwood v. State of Texas, 84
  F.3d 720 (5th Cir. 1996).
• The U.S. Supreme Court denied certiorari and so
  the opinion stands.