1. Chapter 41 Employment Discrimination

2. What are three defense to claims of employment discrimination?
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? And what remedies are available under Title VII?
What are three defense to claims of employment discrimination?

3. 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.

4. 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 employee’s religious practices.
Enforcement of Title VII by EEOC.

5. 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.

6. Discrimination Based on 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.

7. Discrimination Based on Religion
Employers must “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue hardship to employer’s business.

8. 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.

9. Discrimination Based on Gender
Two types of sex discrimination:
Differential treatment.
Sexual harassment, which itself, exists in two varieties:
Hostile Work Environment.
Quid Pro Quo

10. Sexual Harassment
U.S. Supreme Court has interpreted Title VII’s 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.

11. Hostile Work Environment
Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s 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.

12. 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.

13. 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.

14. Online Harassment Company email systems Company chat rooms
Posting sexually explicit images on company computer systems, screen savers, etc.
Employees will generally not be liable if prompt action taken.

15. Remedies under Title VII
Liability may be extensive. Plaintiff may receive:
Reinstatement.
Back Pay.
Retroactive Promotions; and
Damages.

16. 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.

17. 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

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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 employer’s business.
Business necessity is a defense to disparate impact discrimination.

24. 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.

25. 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.

26. 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.

27. 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).

28. The Hopwood Case
In 1996, two white law school applicants sued the University of Texas at Austin when they were denied admission based on race. 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.