Chapter 17 Equal Employment Opportunities

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.

Types of Discrimination Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job. Intentional discrimination by an employer against an employee is known as disparate-treatment discrimination. Disparate-impact discrimination occurs when an employer’s work force does not reflect local market.

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

Gender Discrimination 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. Case 17.1 Carey v. Mount Desert Island Hospital (1998).

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

Sexual Harassment Title VII does not specifically mention sexual harassment as a form of sex discrimination, but the 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: Hostile Work Environment. Quid Pro Quo.

“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.

Harassment by Supervisors: Quid Pro Quo Quid Pro Quo harassment involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit. Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees. Case 17.2 Jin v. Metropolitan Life Insurance Co. (2002).

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 violates Title VII.

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.

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

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. Under Kimmel v. Florida Board of Regents states are immune from private lawsuits brought in federal court under 11th Amendment.

Discrimination based on “Disability” 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. Case 17.3 Clackamas Gastroenterology Assoc., P.C. v. Wells (2003).

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.

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.

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. Case 17.4 Flowers v. Southern Regional Physician Services, Inc. (2001).

Defenses to Employment 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.

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.

BFOQ 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.

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.

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 such as Adarand and the recent U.S. Supreme Court cases: Gratz v. Bollinger (2003). Grutter v. Bollinger (2003).