1. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Chapter 18: Employment Discrimination © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

2. 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. 2

3. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy. Applies to employers involved with interstate commerce with 15 or more employees. Title VII of the Civil Rights Act of 1964 3

4. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices.  EEOC: monitors compliance with Title VII. 4

5. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Intentional Discrimination. “Disparate-Treatment” Discrimination. Applicant must prove: Is a member of a protected class; Applied, qualified, rejected for job; Employer continued to seek applicants. Burden then shifts to employer who must articulate a legal reason for not hiring. 5

6. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Unintentional Discrimination. “Disparate Impact” Discrimination: Occurs when a protected group of people is adversely affected by an employer’s practices, procedures, or tests, even though they do not appear to be discriminatory.  6

7. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Unintentional Discrimination. Pool of Applicants Test: plaintiff shows percentage of the protected class in employer’s workforce does not reflect percentage in local labor market. 7

8. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Unintentional Discrimination. Rate of Hiring: plaintiff compares selection rates of members of protected class with nonmembers in employer’s workforce. According to EEOC, less than 80% may show disparate impact. 8

9. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  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.  9

10. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Discrimination Based on Race, Color, and National Origin. Reverse” Discrimination: Title VII also protects against discrimination against majority group individuals, such as white males. Ricci v. DeStefano (2009). Potential “Section 1981” Claims. 10

11. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  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. 11

12. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Discrimination Based on Gender. Employers are prohibited from classifying jobs based on gender, unless employer can prove gender is essential to the job. Pregnancy Discrimination Act. Equal Pay Act (1963). Lilly Ledbetter Fair Pay Act (2009). 12

13. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Constructive Discharge. Occurs when an employer causes working conditions to be so intolerable that a reasonable person would feel compelled to quit. An employee can be “constructively discharged” but still leave voluntarily.  13

14. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Constructive Discharge. Proving Constructive Discharge. Plaintiff must present objective proof of intolerable working conditions, which employer knew about and failed to correct. Employee’s resignation must be a foreseeable result of working conditions. 14

15. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Sexual Harassment: Title VII protects employees against sexual harassment in the workplace. Two forms of sexual harassment: Quid Pro Quo.  Hostile Work Environment.  15

16. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Sexual Harassment. Quid Pro Quo sexual harassment involves demands for sexual favors are demanded in return for job opportunities, promotions, salary, increases or other tangible benefits. 16

17. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Sexual Harassment. Hostile Work Environment. Occurs when workplace is permeated with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment and create an abusive working environment. 17

18. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Sexual Harassment. Harassment by Supervisors. Usually involves a quid pro quo. For employer to be liable for a supervisor’s sexual harassment, a supervisor must have taken a tangible employment action against the employee.  18

19. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Sexual Harassment. Harassment by Supervisors. The Ellerth / Faragher Affirmative Defense is based on two 1998 Supreme Court decisions. Defense has two elements: – (1) Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior, and  19

20. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Sexual Harassment. Harassment by Supervisors. The Ellerth / Faragher Affirmative Defense. – (2) Plaintiff-employee must have unreasonable failed to take advantage of preventative or corrective opportunities to avoid harm. If an employer can prove both elements, he will not be liable for supervisor’s harassment. 20

21. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Sexual Harassment. Harassment by Supervisors. Retaliation by Employers: action would have dissuaded a reasonable worker from making or supporting a discrimination claim. CASE 18.1 T HOMPSON V. N ORTH A MERICAN S TAINLESS, LP (2011). CASE 18.1 T HOMPSON V. N ORTH A MERICAN S TAINLESS, LP (2011). How could NAS have protected themselves from this claim? 21

22. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Sexual Harassment. Harassment by Co-Workers and Others. Employer generally liable only if employer knew or should have known and failed to take action. Notice to supervisor is sufficient under agency law. Employers may also be liable for harassment by non-employees. 22

23. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Sexual Harassment. Same Gender Harassment. In 1998, Supreme Court held in Oncale v. Sundowner Offshore Services that Title VII prohibitions against sexual harassment extended to same-sex harassment. Easier to prove when harasser is homosexual. 23

24. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Online Harassment. Hostile work environment created using company chat, blogs, email. Employers can avoid liability with prompt remedial action. Employees may be discharged for using company computers to distribute offensive material to coworkers. 24

25. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII of the Civil Rights Act of 1964  Remedies under Title VII. Liability may be extensive. Plaintiff may receive: Reinstatement. Back Pay. Retroactive Promotions; and Damages. 25

26. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers.  Discrimination Based on Age 26

27. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Discrimination Based on Age  Procedures under the ADEA. Plaintiff must show discrimination was THE reason for adverse employment action. CASE 18.2 M ORA V. J OHNSON M EMORIAL F OUNDATION, I NC. (2010). CASE 18.2 M ORA V. J OHNSON M EMORIAL F OUNDATION, I NC. (2010). What was the ‘disputed question of material fact’ the court referred to? 27

28. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Discrimination Based on Age Replacing Older Workers with Younger Workers. Employee must prove that discrimination was based on age bias. The bigger the age gap the more likely the bias. State Employees Not Covered by the ADEA. 28

29. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  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. Discrimination based on Disability 29

30. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Procedures Under the ADA. To prevail, plaintiff must show: She has a “disability.” She is otherwise qualified for the employment in question; and She was excluded from employment solely because of the disability. Plaintiff must first exhaust her claim through the EEOC process. Discrimination based on Disability 30

31. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  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.  Discrimination based on Disability 31

32. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  What Is A “Disability”? 2008 Amendments reverse Supreme Court’s narrow definition of disability. CASE 18.3 R OHR V. S ALT R IVER P ROJECT A GRICULTURAL I MPROVEMENT AND P OWER D ISTRICT (2009). CASE 18.3 R OHR V. S ALT R IVER P ROJECT A GRICULTURAL I MPROVEMENT AND P OWER D ISTRICT (2009). Diabetes is a disability if it significantly restricts eating. Discrimination based on Disability 32

33. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Reasonable Accommodation. Undue Hardship: If an employee can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. Examples: wheelchair ramps.  Discrimination based on Disability 33

34. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Reasonable Accommodation. Job Applications and Physical Exams. Modifications to applications and selection process so those with disabilities can compete. Employers are restricted on pre-hiring questions and physical exams. Discrimination based on Disability 34

35. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Reasonable Accommodation. Substance Abusers: o nly FORMER drug users completed or going through supervised drug rehabilitation programs qualify as “disabled.” Health Insurance Plans: equal access to health care. Discrimination based on Disability 35

36. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Association Discrimination. Protects individuals based on associations with other disabled persons. To prevail, plaintiff must show she was: (1) qualified for the job, (2) subjected to an adverse employment action, and (3) known by her employer to have a relative or an associate with a disability. Discrimination based on Disability 36

37. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  There are four basic types of defenses to employment discrimination claims.  Business Necessity. Bona Fide Occupational Qualification. Seniority Systems. After-Acquired Evidence. Defenses to Employment Discrimination 37

38. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Business Necessity. Requires employer to demonstrate a job qualification is reasonably necessary to the legitimate conduct of the employer’s business. Business necessity is a defense to disparate impact discrimination. Defenses to Employment Discrimination 38

39. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Bona Fide Occupational Qualification. BFOQ defense requires an employer to show a particular skill is necessary for the performance of a particular job. The BFOQ defense is used in cases of disparate treatment discrimination. Defenses to Employment Discrimination 39

40. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  Seniority Systems. Conditions the distribution of job benefits on the length of time one has worked for an employer. Can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws. Defenses to Employment Discrimination 40

41. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.  After-Acquired Evidence. Evidence of misconduct, committed by an employee who is suing an employer for employment discrimination. Uncovered during the process of discovery conducted in preparation for a defense against the suit. Not an absolute defense for employer. Defenses to Employment Discrimination 41

42. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Affirmative Action  Designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes.  Constitutionality of Affirmative Action Programs. May violate Fourteenth Amendment’s equal protection.  42

43. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Affirmative Action  Constitutionality (cont’d). Affirmative action program is constitutional only if it attempts to remedy past discrimination and does not make use of quotas or preferences.  43

44. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Affirmative Action  Affirmative Action in Schools. Generally, program that automatically awards minority students specified number of points is unconstitutional. 44