© 2004 West Legal Studies in Business A Division of Thomson Learning 1 Chapter 34 Employment Discrimination Chapter 34 Employment Discrimination

© 2004 West Legal Studies in Business A Division of Thomson Learning 2 Introduction The most important federal anti-discrimination laws are:  Title VII of the Civil Rights Act of  The Age Discrimination in Employment Act.  The Equal Pay Act.  The Americans with Disabilities Act. The most important federal anti-discrimination laws are:  Title VII of the Civil Rights Act of  The Age Discrimination in Employment Act.  The Equal Pay Act.  The Americans with Disabilities Act.

© 2004 West Legal Studies in Business A Division of Thomson Learning 3 §1: 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.EEOC 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.EEOC

© 2004 West Legal Studies in Business A Division of Thomson Learning 4 Intentional and Unintentional Discrimination Intentional: “Disparate-Treatment” Discrimination. Applicant must prove:  She is member of a protected class;  Applied, qualified and rejected for job; and  Employer continued to seek applicants. Negligent: “Disparate Impact” Discrimination.  Non-protected applicant sues Employer who tries to integrate members of protected classes into workplace. Intentional: “Disparate-Treatment” Discrimination. Applicant must prove:  She is member of a protected class;  Applied, qualified and rejected for job; and  Employer continued to seek applicants. Negligent: “Disparate Impact” Discrimination.  Non-protected applicant sues Employer who tries to integrate members of protected classes into workplace.

© 2004 West Legal Studies in Business A Division of Thomson Learning 5 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 6 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.  See Frazee v. Illinois Dept. of Employment Security (1989).Frazee v. Illinois Dept. of Employment Security Employers must “reasonably accommodate” the “sincerely held” religious practices of its employees, unless to do so would cause undue hardship to employer’s business.  See Frazee v. Illinois Dept. of Employment Security (1989).Frazee v. Illinois Dept. of Employment Security

© 2004 West Legal Studies in Business A Division of Thomson Learning 7 Gender “Sex” 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 8 Gender Discrimination Two types of sex discrimination:  Differential treatment.  Sexual harassment: Hostile Work Environment. Quid Pro Quo. Case 34.1: Carey v. Mount Desert Island (1998).Carey v. Mount Desert Island Two types of sex discrimination:  Differential treatment.  Sexual harassment: Hostile Work Environment. Quid Pro Quo. Case 34.1: Carey v. Mount Desert Island (1998).Carey v. Mount Desert Island

© 2004 West Legal Studies in Business A Division of Thomson Learning 9 Sexual Harassment Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, 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. Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 10 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 11 Harassment by Supervisors 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 34.2: Jin v. Metropolitan Life Ins. Co. (2002). 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 34.2: Jin v. Metropolitan Life Ins. Co. (2002).

© 2004 West Legal Studies in Business A Division of Thomson Learning 12 Supreme Court Guidelines Faragher v. City of Boca Raton (1998)  Employer (city) could be liable for supervisor’s harassment even though the employer was unaware of the conduct. Harassment policies and procedures had not be distributed among employees. Burlington Industries v. Ellerth (1998).  Company liable for harassment even though the employee suffered no adverse job consequences. Faragher v. City of Boca Raton (1998)  Employer (city) could be liable for supervisor’s harassment even though the employer was unaware of the conduct. Harassment policies and procedures had not be distributed among employees. Burlington Industries v. Ellerth (1998).  Company liable for harassment even though the employee suffered no adverse job consequences.

© 2004 West Legal Studies in Business A Division of Thomson Learning 13 Supreme Court Guidelines Employers have a defense if:  They took “reasonable care to prevent and correct promptly any sexually harassing behavior” by establishing and distributing effective harassment policies and procedures.  That the employee suing for harassment failed to follow these policies and procedures. Employers have a defense if:  They took “reasonable care to prevent and correct promptly any sexually harassing behavior” by establishing and distributing effective harassment policies and procedures.  That the employee suing for harassment failed to follow these policies and procedures.

© 2004 West Legal Studies in Business A Division of Thomson Learning 14 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 15 Online Harassment Employees can create hostile work environment using chat, to spread racial and sexual jokes and slurs. Employers can avoid liability with prompt remedial action. Employees may be discharged for using company computers to distribute offensive material to coworkers. Employees can create hostile work environment using chat, to spread racial and sexual jokes and slurs. Employers can avoid liability with prompt remedial action. Employees may be discharged for using company computers to distribute offensive material to coworkers.

© 2004 West Legal Studies in Business A Division of Thomson Learning 16 Remedies Under Title VII Liability may be extensive. Plaintiff may receive:  Reinstatement.  Back Pay.  Retroactive Promotions; and  Damages. Liability may be extensive. Plaintiff may receive:  Reinstatement.  Back Pay.  Retroactive Promotions; and  Damages.

© 2004 West Legal Studies in Business A Division of Thomson Learning 17 § 2: 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 18 § 3: Age Discrimination 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 (2000), states are immune from private lawsuits brought in federal court under 11 th Amendment. 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 (2000), states are immune from private lawsuits brought in federal court under 11 th Amendment.

© 2004 West Legal Studies in Business A Division of Thomson Learning 19 § 4: 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 20 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 21 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.  Case 42.3: Sutton v. United Airlines (1999).Sutton v. United Airlines 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.  Case 42.3: Sutton v. United Airlines (1999).Sutton v. United Airlines

© 2004 West Legal Studies in Business A Division of Thomson Learning 22 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 23 Hostile Environment Claims under ADA Some courts have allowed hostile environment suits under ADA, although ADA does not expressly allow suits for this claim. Case 34.3: Flowers v. Southern Regional Physician Services Inc. (2001). Some courts have allowed hostile environment suits under ADA, although ADA does not expressly allow suits for this claim. Case 34.3: Flowers v. Southern Regional Physician Services Inc. (2001).

© 2004 West Legal Studies in Business A Division of Thomson Learning 24 §5: 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 25 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 26 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 27 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 28 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning 29 § 6: 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.  University of California v. Bakke (1978). University of California v. Bakke  Adarand Constructors v. Pena (1995). Adarand Constructors v. Pena 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.  University of California v. Bakke (1978). University of California v. Bakke  Adarand Constructors v. Pena (1995). Adarand Constructors v. Pena

© 2004 West Legal Studies in Business A Division of Thomson Learning 30 The Hopwood Case In 1996, two white law school applicants sued the University of Texas at Austin when they were denied admission. 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 (5 th Cir. 1996). Hopwood v. State of Texas The U.S. Supreme Court denied certiorari and so the opinion stands as law for the Fifth Circuit. In 1996, two white law school applicants sued the University of Texas at Austin when they were denied admission. 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 (5 th Cir. 1996). Hopwood v. State of Texas The U.S. Supreme Court denied certiorari and so the opinion stands as law for the Fifth Circuit.

© 2004 West Legal Studies in Business A Division of Thomson Learning 31 Law on the Web Employment law at Cornell U. Employment law at Cornell Arent Fox Law Firm. Arent Fox Law Firm ADA Resources. EEOC. Legal Research Exercises on the Web. Employment law at Cornell U. Employment law at Cornell Arent Fox Law Firm. Arent Fox Law Firm ADA Resources. EEOC. Legal Research Exercises on the Web.