Employment Discrimination

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Chapter 18

• Employment Discrimination

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Quote of the Day
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The United States Constitution

• Fifth Amendment Prohibits the federal
  government from
• Depriving individuals of life, liberty, or
  property without due process of law
• Fourteenth Amendment Prohibits state
  governments from
• Violating an individuals right to due process
  and equal protection

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Civil Rights Act of 1866

• Title VII
• Illegal for employers with 15 or more employees
  to discriminate on the basis of race, color,
  religion, sex, or national origin

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Civil Rights Act of 1866

• Prohibited activities
• Disparate treatment
• Step 1 Plaintiff presents evidence that
• He belongs to a protected category
• He was treated differently from other similar
  people who are not protected
• Prima facie From Latin, meaning from its first
  appearance, something that appears true upon
  first look

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Civil Rights Act of 1866

• Prohibited activities
• Disparate treatment
• Step 2 Defendant must present evidence that its
  decision was based on legitimate,
  nondiscriminatory reasons
• Step 3 To win, plaintiff must prove that the
  employer intentionally discriminated by showing
  that
• Reasons offered were simply pretext
• Discriminatory intent is more likely than not

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Civil Rights Act of 1866

• Prohibited activities
• Disparate impact
• Step 1 Plaintiff must present a prima facie
  case
• Step 2 Defendant must offer some evidence that
  the employment practice was a job-related
  business necessity
• Step 3 To win, plaintiff must prove either
  that
• Employers reason is a pretext or that other,
  less discriminatory, rules would achieve the same
  results

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Civil Rights Act of 1866

• Prohibited activities
• Hostile work environment
• Sexual harassment Unwelcome sexual advances
• Requests for sexual favors
• Severe verbal or physical conduct of sexual
  nature that interfere with an employees ability
  to work
• Categories
• Quid pro quo One thing in return for another
• Hostile work environment

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Civil Rights Act of 1866

• Prohibited activities
• Hostile work environment
• Same-sex harassment
• Employer liability for sexual harassment
• The company is also liable for the employees
  conduct
• Hostile environment based on race
• Hostile environment based on color
• Hostile environment based on national origin

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Civil Rights Act of 1866

• Prohibited activities
• Retaliation Employer has done something that
  would deter a reasonable worker from complaining
  about discrimination

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Civil Rights Act of 1866

• Religion
• Employers cannot discriminate against a worker
  because of his religious beliefs
• Sex
• Gender must be irrelevant to employment decisions
• Family responsibility discrimination
• Parenthood is a protected category under Title VII

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Civil Rights Act of 1866

• Sexual orientation
• Half the states and hundreds of cities have
  statutes that prohibit discrimination based on
  sexual orientation
• Gender identity
• Discriminating against someone for being
  transgender is a violation of Title VII

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Defenses to Charges of Discrimination

• Merit
• Defendant is not liable if he shows that the
  person he favored was the most qualified
• Seniority
• Legitimate seniority system is legal even if it
  perpetuates past discrimination

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Defenses to Charges of Discrimination

• Bona fide occupational qualification (BFOQ)
• Employer is permitted to establish discriminatory
  job requirements if they are essential to the
  position in question
• Employers consider customer preference in such
  situations
• Safety
• Privacy
• Authenticity

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Defenses to Charges of Discrimination

• Affirmative action Goal is to remedy the
  effects of past discrimination
• Sources
• Litigation
• Voluntary action
• Government contracts

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Equal Pay Act of 1963

• Employee may not be paid at a lesser rate than
  employees of the opposite sex for equal work
• Equal work Tasks that require equal skill,
  effort, and responsibility under similar working
  conditions

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Pregnancy Discrimination Act

• An employer may not fire, refuse to hire, or fail
  to promote a woman because she is pregnant

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Age Discrimination Act

• An employer with 20 or more workers may not fire,
  refuse to hire, fail to promote or otherwise
• Reduce a persons employment opportunities
  because he is 40 or older
• Plaintiff can show discrimination in
• Disparate treatment
• Disparate impact
• Hostile work environment

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Disparate Treatment

• Step 1 Plaintiff must show that
• He is 40 or older
• He suffered an adverse employment action
• He was qualified for the job for which he fired
  or not hired
• Replaced by younger person
• Step 2 Employer must present evidence that its
  decision was based on legitimate,
  nondiscriminatory reasons
• Step 3 Plaintiff must show that employers
  reasons are a pretext

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Disparate Impact

• Step 1 Plaintiffs must present a prima facie
  case that employment practice excludes a number
  of people 40 and older
• Step 2 Employer wins if decision was based on
  reasonable factor other than age

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Hostile Work Environment

• Bona fide occupational qualification
• To set a maximum age, employer must show that
• Age limit is necessary to the essence of business
• Virtually everyone that age is unqualified for
  the job
• Age is the only that an employer can determine
  who is qualified

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Discrimination on the Basis of Disability

• Rehabilitation Act of 1973
• Prohibits discrimination on the basis of
  disability by
• Executive branch of the federal government
• Federal contractors
• Entities that receive federal funds

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Americans with Disabilities Act

• Disability
• Disabled person is
• Someone with a physical or mental impairment that
  limits a major life activity
• Someone who is regarded as having such an
  impairment

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Americans with Disabilities Act

• Accommodating the disabled worker
• Reasonable accommodation Employers are expected
  to
• Make facilities accessible
• Permit part-time schedules
• Acquire or modify equipment
• Assign a disabled person to an open position that
  he can perform
• Can perform essential functions of the job
• Accommodation is not reasonable if it would
  create undue hardship for the employer

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Americans with Disabilities Act

• Medical exams Three stages
• With applicants, employer may not require medical
  exam, interviewer may ask
• Whether an applicant can perform the work
• Applicant to demonstrate the work
• What accommodation applicant would need

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Americans with Disabilities Act

• With entering employees, medical test must be
• Required of all employees
• Treated as confidential
• With existing employees, medical exam are
  required to determine
• If a worker is still able to perform the existing
  function of the job

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Americans with Disabilities Act

• An employer may not discriminate against someone
  because of his relationship with a disabled
  person
• Physical and mental abilities are to be treated
  the same
• Disparate treatment and disparate impact
• Hostile work environment

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Genetic Information Nondiscrimination Act

• Employers with 15 or more workers may not
  require
• Genetic testing or discriminate against workers
  because of their genetic makeup
• Health insurers may not use such information to
  decide coverage or premiums

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Enforcement

• Constitutional claims
• People bringing a claim under the Constitution
  must file a suit on their own
• Civil Rights Act of 1866
• Advantages over Title VII
• Four-year statute of limitations
• Unlimited compensatory and punitive damages
• Applicability to all employers

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Enforcement

• Rehabilitation Act of 1973
• Statute is enforced by the EEOC, Department of
  Labor, and Department of Justice
• Other statutory claims
• EEOC responsible for enforcing
• Title VII
• Equal Pay Act
• Pregnancy Discrimination Act
• ADEA
• ADA
• GINA

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