Wrongful Termination and Employment Discrimination OBE 118 Fall 2004 Professor McKinsey Illegal discrimination in the firing, firing, promoting of employees and in the allocation of employment benefits. opportunities and rewards. Final Exam is Thursday, December 16 from 8:00 to 10:00

Final Exam Thursday, December 16 from 8:00 to 10:00 All Multiple Choice (40 Questions) Bring Scantron 882 You will have the whole exam period, but should not need the whole exam period

Right to Work? The At-will Employment versus Wrongful Discharge paradox At-will employees can be fired for “any reason” except: –Public Policy –Implied Contracts –Covenant of Good Faith and Fair Dealing

Employment Discrimination Illegal discrimination can occur in hiring, firing and day to day discipline or rewards given to employees Gender Discrimination Racial Discrimination National Origin Discrimination Religious Discrimination Age Discrimination Disability Discrimination

Employment Discrimination Illegal discrimination can occur in hiring, firing and day to day discipline or rewards given to employees Gender Discrimination Racial Discrimination National Origin Discrimination Religious Discrimination Age Discrimination Disability Discrimination Sexual Harassment “Regular” discrimination

Employment Discrimination Illegal discrimination can occur in hiring, firing and day to day discipline or rewards given to employees Gender Discrimination Racial Discrimination National Origin Discrimination Religious Discrimination Age Discrimination Disability Discrimination Affirmative Action

Employment Discrimination Distinguishing between express and implied discrimination Sometimes the facts show us that discrimination was intended and obvious (disparate treatment) Why is intent relevant? More often we have action by someone that has a discriminatory effect but no objective evidence of intent (disparate effect)

Racial Discrimination Discrimination on the basis of race or color is illegal. - Civil Rights Act of 1964 (Title VII) What is discrimination? 1) Express Intentional Discrimination (disparate treatment) 2) Disparate Impacts Discrimination a) Action has disparate impacts b) Action not necessitated by lawful business purpose

Gender-Based Discrimination Discrimination on the basis of gender is illegal (sometimes) Title VII and EEOA of 1972 Bona Fide Occupational Qualification (BFOC) Not as carte blanche as race based prohibition “Title VII permits distinctions based upon real sex-based differences…” - Ct of Appeals, 7 th Cir. Sexual Harassment- special form of gender discrimination Quid pro quo Hostile environment

Affirmative Action Supreme Court has ruled that hard quotas are illegal Affirmative Action Programs could constitute illegal discrimination on basis of sex or race “Soft” programs like preferences between equal candidates can be allowed Prop 209- (California) – No preferential treatment allowed at all

Disability Discrimination Americans with Disabilities Act (ADA) Improve access Cannot discriminate against disabled person able to perform essential functions of job (employers with 15 or more employees) Must reasonably accommodate both of the above. Note: the ADA also effects public right to access some businesses.

Age Discrimination Age Discrimination in Employment Act (ADEA) of 1967 No arbitrary age discrimination in employment of persons greater than 40 years of age BFOQ available (like Gender based) A court based upper limit of 70 years is generally recognized where BFOQ becomes easier to establish

Employment Discrimination Summary You can never intentionally discriminate on basis of race, national origin, or religion You cannot, without a BFOQ, intentionally discriminate on basis of sex or age You cannot intentionally discriminate on basis of disability without first reasonably accommodating the disability Generally, if an action results in discrimination as described above you have to have legitimate and legal business reason to act.