Employment Discrimination

Tennessee At Will State Employment at will (EAW) Under EAW, an at ‑ will employee may be discharged for good reason, bad reason or not reason at all 2

Discrimination Definition - being treated differently than others. This is LEGAL in Tennessee so long as the employee is NOT being treated differently because of age, race, sex, religion, national affiliation, union. Can treat different because of tattoos piercings. 3

ADEA The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older 4

ADEA- JOB APPLICATIONS The ADEA generally makes it unlawful to include age preferences in job advertisements. A job advertisement may specify an age limit only in the rare circumstances where age is shown to be business necessity 5

Equal Pay Act The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex- based wage discrimination 6

Pay Check Fairness Act -failed last week for the THIRD time. The bill would prohibit retaliation against employees who share their salary information with each. Businesses would have to prove that a wage gap was job related 7

Title VII - Civil Rights Act Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, religion, sex, or national origin 8

Religious Accommodation in the Workplace Title VII – Civil Rights Act 9

10 Discrimination Based on Religion Religion –1. Cannot discriminate AND –2. Must make “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue burden to employer’s business.

Religious Accommodation in the Workplace reasonably accommodations- Sincerely held religious beliefs the religious practices of an employee or prospective employee Undue burden 11

Employers may not treat employees more or less favorably because of their religion. Employers must take steps to prevent religious harassment of their employees. Employers may not retaliate against employees for religion. 12

Requested accommodations vary EX. - an employee may need a particular day off each year for a religious holiday; or to wear religious attire; or to have a place to pray. Other examples - shift swaps between employees, voluntary assignment substitutions, flexible scheduling (allowing an employee to work on Sundays, Christmas or other national holiday in place of the day he or she needs off) An employer may require an employee to use their paid time off, such as personal or vacation days, to meet an employee’s required accommodation. 13

IF ER CANNOT ACCOMODATE To avoid liability, an employer must show must show that 1.The employer offered a reasonable accommodation; OR 2. After a good faith effort, no accommodation that did not cause an undue hardship could be found. identify an actual monetary or administrative expense. 14

© 2011 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 Trans World Airlines v. Hardison Facts: –Trans World Airlines (TWA) operates 24 hours per day, 365 days per year. Larry Hardison, an employee of TWA, practiced a religion that required observing the Sabbath and other religious holidays by refraining from work on those days. He refused to report for work on Saturdays and was consequently fired. Issue: –Whether TWA made reasonable efforts to accommodate Hardison’s religious needs Decision: –The court held that TWA made reasonable efforts to accommodate Hardison’s religious needs.

© 2011 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 Webb v. City of Philadelphia Facts: –Kimberlie Webb, a practicing Muslim, was a police officer for the City of Philadelphia. She requested to wear a headscarf while on duty and was denied because of the uniform requirements. Webb then filed a complaint of religious discrimination under Title VII. Issue: –Whether allowing Webb to wear a headscarf while on duty constitutes an undue hardship on the Philadelphia Police Department Decision: –The Third Circuit held that the uniform requirements were crucial to the safety of officers, to their morale and esprit de corps, and to public confidence in the police and therefore ruled in favor of the city.

Cloutier v. Costco Employee had a eyebrow ring. Costco had policy no body art visible. Employee claimed religious discrimination. She belong to Church of Body Modification. Costco said she could wear bandaid over it. 17

Costco Case cont. Court said Employee would not accept reasonable accommodation and anything more could cause undue hardship. Red Robin – religious tattoos on wrist. ER said family oriented. Ct said ER failed to show reasonable accommodations 18

Title VII – Civil Rights Act TWO TYPES OF SEXUAL HARASSMENT 1. Quid Pro Quo – giving something for something else 2. Hostile Work Environment (Sexual) 19

20 Supreme Court Guidelines Employers have a defense if: –Had effective harassment policies and procedures and they complied with it. –OR that the employee suing for harassment failed to follow these policies and procedures.

EXAMPLE: Sexual Harassment Policy 1. GENERAL POLICY AGAINST SEXUAL HARASSMENT: It is the policy of (business/organization name) that all employees are responsible for ensuring that the workplace is free from sexual harassment. Because of (business/organization name) strong disapproval of offensive or inappropriate sexual behavior at work, all employees must avoid any action or conduct which could be viewed as sexual harassment. 21

II. DEFINE SEXUAL HARASSMENT Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexually harassing nature, when: (1) submission to the harassment is made either explicitly or implicitly a term or condition of employment; (2) submission to or rejection of the harassment is used as the basis for employment decisions affecting the individual; or (3) the harassment has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. 22

III. Procedure for complaints Any employee who has a complaint of sexual harassment at work by anyone, including supervisors, co-workers or visitors, should first clearly inform the harasser that his/her behavior is offensive or unwelcome and request that the behavior stop. if the behavior continues, the employee must immediately bring the matter to the attention of his/her supervisor. If the immediate supervisor is involved in the harassing activity, the violation should be reported to that supervisor’s immediate supervisor, the department personnel officer, or the employee relations coordinator, who can be reached at (phone number). 23

Procedure including Discipline If a supervisor or personnel officer knows of an incident of sexual harassment, they shall take appropriate remedial action immediately. If the alleged harassment involves any types of threats of physical harm to the victim, the alleged harasser may be suspended with pay. During such suspension, an investigation will be conducted by (business/organization name). If the investigation supports charges of sexual harassment, disciplinary action against the alleged harasser will take place and may include termination. if the investigation reveals that the charges were brought falsely and with malicious intent, the charging party may be subject to disciplinary action, including termination. If an employee is dissatisfied with management’s response to his/her complaint, he/she may contact the _________________________ 24

TENNESSEE DISCRIMINATION LAWS 25

THRA Tennessee Human Rights Act (THRA) is comparable to Title VII of the Civil Rights Act but includes AGE Discrimination: race, religion, sex, age or national origin." Tenn. Code § (a). 26

TN AGE DISCRIMINATION THRA - are at least forty (40) years of age but less than seventy (70) years of age. What about 70? 27