Title VII of Civil Rights Act of 1964

1
Title VII of Civil Rights Act of 1964

• Employers with 15 Employees
• No Discrimination in Terms or Conditions of
  Employment Based on Race, Color, Sex, Religion or
  National Origin
• Remedies Reinstatement, Backpay and Benefits,
  Legal Fees, Compensatory and Punitive Damages
  (limited - employer size)
• Defenses BFOQ, Bona Fide Seniority System

2
NYS Human Rights Law

• Employers with 4 Employees
• No Discrimination in Employment Based on
• Race or Color
• Religion
• Sex
• National Origin
• Marital Status
• Disability
• Age gt18
• Criminal Record (If Not Job Related)
• Sexual Preference or Sexual Orientation

3
Discrimination under Title VII

• Disparate Treatment -- Intentional discrimination
  based on race, color, sex, etc.
• Disparate Impact -- discriminatory effect of
  apparently-neutral criteria that are not job
  related
• Pattern or Practice -- EEOC or govt. suit for
  widespread practice
• Retaliation or Reprisals

4
Disparate Impact Discrimination and Selection
Validity

• Sec. 703(k) of Title VII of Civil Rights Act of
  1964, as amended
• Disparate Impact -- shown by 4/5ths Rule or
  Other Statistical Evidence
• Concern about labor market definition
• Job-related Validity -- Uniform Guidelines on
  Employee Selection

5
Seniority Title VII

• S. 703(h) -- action pursuant to bona fide
  seniority system not a violation
• Teamsters -- what is a bona fide seniority
  system?
• neutral on its face
• origin free from discrimination
• basis rational in light of industry
• maintained free from discriminatory intent

6
The Equal Pay Act

• Equal Pay for Equal Work
• Equal Work Defined as
• Equivalent Skills, Effort, Responsibility and
  Working Conditions
• Defenses
• Seniority
• Merit Pay
• Productivity Pay
• Factor Other than Sex

7
Family and Medical Leave Act

• Employers with 50 employees
• Unpaid leave for employees for
• birth or adoption of child
• foster care
• serious medical condition for child, spouse, self
  or parents
• Right to return to same or equivalent position
• May require notice
• Key employees exempted

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SEXUAL HARASSMENT
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SEXUAL HARASSMENTDefinition 29 C.F.R. 1604.11

• Unwelcome sexual advances, requests for sexual
  favors, and other verbal or physical conduct of a
  sexual nature constitute sexual harassment when
• submission to such conduct is made either
  explicitly or implicitly a term or condition of
  an individuals employment,
• submission to or rejection of such conduct by an
  individual is used as the basis for employment
  decisions affecting such individual, or
• such conduct has the purpose or effect of
  unreasonably interfering with an individuals
  work performance or creating an intimidating,
  hostile or offensive working environment.

10
QUID PRO QUO HARASSMENT

• Submission to such conduct is made either
  explicitly or implicitly a term or condition of
  an individuals employment, or
• Submission to or rejection of such conduct by an
  individual is used as the basis for employment
  decisions affecting such individual

11
HOSTILE ENVIRONMENTHarris v. Forklift Systems,
114 S.Ct. 367 (1993)

• When the workplace is permeated with
  discriminatory intimidation, ridicule and insult
  that is sufficiently severe or pervasive to alter
  the conditions of the victims employment and
  create an abusive working environment, Title VII
  is violated
• Reasonable Person or Reasonable Woman?

12
EMPLOYER LIABILITY

• Supervisory Employees Agency Principles
• Co-Workers Did Employer Know, or Should Have
  Known?
• Non-Employees Extent of Employers Control, and
  Did Employer Know or Should Have Known?

13
EMPLOYER LIABILITY FOR SUPERVISORS HARASSMENT

• Faragher v. City of Boca Raton, 118 S.Ct. 2275
  (1998)
• Burlington Industries, Inc. v. Ellerth, 118 S.Ct.
  2257 (1998)
• Does harassment result in tangible employment
  result?
• If so, employer automatically liable
• If not, employer can establish defense

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EMPLOYERS DEFENSE

• Two Parts
• employer must show exercised reasonable care to
  prevent correct promptly sexual harassing
  behavior
• employee unreasonably failed to take advantage of
  any preventative or corrective opportunities
  provided by employer
• Goes to liability damages

15
LEGAL REMEDIES FOR SEXUAL HARASSMENT

• Reinstatement, Promotion as appropriate
• Damages Lost Wages Benefits
• Compensatory Damages Medical or Emotional
  Injury, Pain Suffering
• Punitive Damages Amount Limited Based on
  Employer Size
• Legal Fees for Plaintiff
• Court Injunction Cease Desist Order
• Possible Tort Liability as well

16
PREVENTION

• An employer should take all steps necessary to
  prevent sexual harassment from occurring -- EEOC
  Guidelines
• Educate and sensitize all employees
• Develop policy for dealing with complaints and
  appropriate sanctions for violations
• Publicize policy
• Take immediate action on complaints

17
EMPLOYERS SEXUAL HARASSMENT POLICY

• Define Sexual Harassment (EEOC Guidelines
  Practical Examples)
• Make It Clear Such Conduct Will Not Be Tolerated
  by Anyone
• Specify Penalties -- up to Termination
• Specify Procedures for Filing Complaints
• Designate Person to Receive and Investigate
  Complaints
• Protect Complainant from Reprisals or Retaliation

18
Civil Rights Acts of 1866 42 U.S.C. 1981 1983

• S. 1981 Intentional Discrimination Based on
  Race
• Covers Employment Discrimination
• Suit for Compensatory Punitive Damages, Legal
  Fees
• S. 1983 Deprivation of Rights Protected by Law
• Intentional Discrimination by Public Sector
  Employers
• Suit for Damages and Legal Fees

19
Age Discrimination in Employment Act

• Covers Employers with 20 Employees
• No Discrimination Based on Age gt 40
• No Mandatory Retirement Age
• Defenses
• BFOQ
• Executive Exemption
• Bonafide Seniority or Benefit Plan -- Cost
  Justification
• Factor Other Than Age

20
Americans with Disabilities Act

• Coverage 15 or more employees
• 3 Part Definition of Disability
• Reasonable Accommodation of Otherwise Qualified
  Persons with a Disability
• Defenses
• Direct Threat to Health or Safety
• Job Related Criteria
• Food Handler Defense -- HHS List
• Religious Entities

21
Rehabilitation Act

• 3 Part Definition of Disability
• Protects Otherwise Qualified Individuals with a
  Disability
• S 503 Federal Contractors (gt 10K) subject to
  nondiscrimination obligation
• S. 504 Activities receiving federal funding
  cant discriminate against otherwise qualified
  individuals with a disability

22
E.O. 11246

• Federal Contractors (10K) must agree not to
  discriminate on race, color, religion, sex or
  national origin
• Contractors with 50K and 50 employees must have
  written affirmative action plan
• Utilization Analysis of Workforce
• Goals and Timetables to remedy underutilization
  of women and minorities

23
STATE EEO LEGISLATION

• Broad Protections -- go beyond Title VII and
  other federal legislation
• Genetic Characteristics or Traits
• Criminal Record
• Marital or Family Status
• Sexual Orientation (15 States D.C.)
• Other Legislation Whistleblower laws, Off Duty
  Conduct