Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Slides developed by Les Wiletzky PowerPoint Slides to Accompany ESSENTIALS OF BUSINESS AND ONLINE COMMERCE LAW 1 st Edition by Henry R. Cheeseman Chapter 20 Equal Opportunity in Employment Chapter 20 Equal Opportunity in Employment

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Equal Opportunity in Employment The right of all employees and job applicants: 1.To be treated without discrimination, and 2.To be able to sue employers if they are discriminated against

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Equal Employment Opportunity Commission (EEOC)  The federal administrative agency responsible for enforcing most federal antidiscrimination laws  The EEOC is empowered to: Conduct investigations Interpret the statutes Encourage conciliation between employees and employers Bring suit to enforce the law

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Title VII of the Civil Rights Act of 1964 protected classes Intended to eliminate job discrimination based on five protected classes: 1.Race 2.Color 3.Religion 4.Sex 5.National Origin

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Scope of Coverage of Title VII (1 of 2)  Title VII applies to: Employers with 15 or more employees All employment agencies Labor unions with 15 or more members State and local governments and their agencies Most federal government employment  Indian tribes and tax-exempt private clubs are expressly excluded from coverage

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Scope of Coverage of Title VII (2 of 2) term, condition, or privilege of employment  Title VII applies to any term, condition, or privilege of employment including, but not limited to: Hiring and firing Work rules Promotion and demotion Payment of compensation and benefits Availability of job training opportunities

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Forms of Title VII Actions Disparate Treatment Discrimination individual  Occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion Disparate Treatment Discrimination individual  Occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion Disparate Impact Discrimination protected class  Occurs when an employer discriminates against an entire protected class  Often, this is proven through statistical data about the employer’s employment practices Disparate Impact Discrimination protected class  Occurs when an employer discriminates against an entire protected class  Often, this is proven through statistical data about the employer’s employment practices

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Procedure for Bringing a Title VII Action  Private complainant must file a complaint with the EEOC  The EEOC is given the opportunity to sue the employer on the complainant’s behalf right to sue letter  If the EEOC chooses not to bring suit, it will issue a right to sue letter to the complainant  Complainant now has the right to sue the employer

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Remedies for Violations of Title VII  A successful plaintiff in a Title VII action can recover back pay and reasonable attorneys’ fees  The courts also have broad authority to grant equitable remedies  A court can award punitive damages against an employer in cases involving an employer’s malice or reckless indifference to federally protected rights

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Race, Color, and National Origin Discrimination race colornational origin  Title VII was primarily enacted to prohibit employment discrimination based on race, color, and national origin Race Race: refers to broad categories such as Black, Asian, Caucasian, and Native American Color Color: refers to the color of a person’s skin National Origin National Origin: refers to the country of a person’s ancestors or cultural characteristics

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Sex Discrimination  Discrimination against a person solely because of his or her gender Applies equally to men and women Overwhelming majority of Title VII sex discrimination cases are brought by women

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Pregnancy Discrimination Act (1978)  Amendment to Title VII “pregnancy, childbirth, or related medical conditions”  Forbids employment discrimination because of “pregnancy, childbirth, or related medical conditions”  Work rules that prohibit the hiring of pregnant women violate Title VII

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Sexual Harassment (1 of 2) sex discrimination  Refusing to hire or promote someone unless he or she has sex with the manager or supervisor is sex discrimination that violates Title VII sexual harassment  Other forms of conduct, such as lewd remarks, touching, intimidation, posting pinups, and other verbal or physical conduct of a sexual nature, constitute sexual harassment and violate Title VII

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Sexual Harassment (2 of 2) hostile work environment  Title VII prohibits sexual harassment that causes a hostile work environment  The circumstances that create a hostile work environment include: Frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved The Reasonable Woman Standard “reasonable person”  In most cases, the courts use a “reasonable person” standard to determine whether certain conduct violates the norms of society “reasonable woman”  For cases involving sexual harassment, several courts have adopted the “reasonable woman” standard i.e., evaluating the severity and pervasiveness of sexual harassment from the perspective of the victim. “reasonable person”  In most cases, the courts use a “reasonable person” standard to determine whether certain conduct violates the norms of society “reasonable woman”  For cases involving sexual harassment, several courts have adopted the “reasonable woman” standard i.e., evaluating the severity and pervasiveness of sexual harassment from the perspective of the victim.

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Same-Sex Discrimination same- sex sexual harassment and discrimination  The U.S. Supreme Court has held that same- sex sexual harassment and discrimination violate Title VII  Many state and local laws also prohibit this form of discrimination and harassment in the workplace

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Affirmative Defense in Sexual Harassment Cases  The Supreme Court has determined that an employer may raise an affirmative defense against liability or damages by proving two elements: 1.The employer exercised reasonable care to prevent and correct promptly any sexual-harassing behavior 2.The plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Religious Discrimination  Title VII prohibits employment discrimination based on a person’s religion or religious practices reasonably accommodate undue hardship  Under Title VII, an employer is under a duty to reasonably accommodate an employee’s religious practices, observances, or beliefs if it does not cause an undue hardship on the employer

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Defenses to a Title VII Action: Merit merit  Employers can select or promote employees based on merit  Merit decisions are often based on work, educational experience, and professionally developed ability tests job related  To be lawful under Title VII, the requirement must be job related

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Defenses to a Title VII Action: Seniority seniority system  An employer may maintain a seniority system that rewards long-term employees e.g., higher wages, fringe benefits, and other preferential treatment  Such systems are lawful if they are not the result of intentional discrimination

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Defenses to a Title VII Action: Bona Fide Occupational Qualification (BFOQ)  Employment discrimination based on a protected class (other than race or color) is lawful if it is: Job related, and a Business necessity  This exception is narrowly interpreted by the courts

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Civil Rights Act of 1866  Section 1981 of the Civil Rights Act of 1866  Section 1981 of the Civil Rights Act of 1866 expressly prohibits racial discrimination  It has also been held to forbid discrimination based on national origin

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Equal Pay Act of 1963  Protects both sexes from pay discrimination based on sex  The act prohibits disparity in pay for jobs that require: Equal skill Equal effort Equal responsibility Similar working conditions

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Criteria That Justify a Differential in Wages Equal Pay Act  The Equal Pay Act expressly provides four criteria that justify a differential in wages: Seniority Merit Quantity or quality of product Any factor other than sex  The employer bears the burden of proving these defenses

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Age Discrimination in Employment Act (ADEA) of 1967 (1 of 2)  Prohibits age discrimination in all employment decisions, including: Hiring Promotions Payment of compensation Other terms and conditions of employment Older Workers Benefit Protection Act (OWBPA)  The Older Workers Benefit Protection Act (OWBPA) amended ADEA to prohibit age discrimination with regard to employee benefits

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Age Discrimination in Employment Act (ADEA) of 1967 (2 of 2)  ADEA applies to employees who are 40 years of age and older  Covered employers cannot establish mandatory retirement ages for their employees  ADEA is administered by the EEOC

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Americans with Disabilities Act (ADA) of 1990 ADA  The ADA imposes on employers and providers of public transportation, telecommunications, and public accommodations to accommodate individuals with disabilities  Title I of the ADA  Title I of the ADA prohibits employment discrimination against qualified individuals with disabilities

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Title I of the ADA requires an employer to make reasonable accommodations to individuals with disabilities that do not cause undue hardship to the employer.

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Reasonable Accommodation Under ADA  Reasonable accommodations may include: Making facilities readily accessible Providing part-time or modified work schedules Acquiring equipment or devices Modifying examination and training materials Providing qualified readers or interpreters

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Qualified Individual with a Disability (1 of 2)  A person who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Qualified Individual with a Disability (2 of 2) disabled person A disabled person is someone who: 1.Has a physical or mental impairment that substantially limits one or more of his or her major life activities, 2.Has a record of such impairment, or 3.Is regarded as having such impairment

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Forbidden Conduct Under Title I of ADA  Employers are forbidden from asking a job applicant about the existence, nature, and severity of a disability  Pre-employment medical examinations are forbidden before a job offer

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Procedure and Remedies Under Title I of ADA  An aggrieved individual must file a charge with the EEOC EEOC may take action against the employer, or Permit the individual to pursue a private cause of action  Relief can take the form of: an injunction hiring or reinstatement (with back pay) payment of attorneys’ fees recovery of compensatory and punitive damages  An aggrieved individual must file a charge with the EEOC EEOC may take action against the employer, or Permit the individual to pursue a private cause of action  Relief can take the form of: an injunction hiring or reinstatement (with back pay) payment of attorneys’ fees recovery of compensatory and punitive damages

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved Affirmative Action  Policy that provides that certain job preferences will be given to minority or other protected class applicants when an employer makes an employment decision  Key issues: Affirmative action plans Reverse discrimination Race norming

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved State and Local Government Anti- discrimination Laws  Many state and local governments have adopted laws that prevent discrimination in employment Usually include classes protected by federal equal opportunity laws Also include classes of persons not protected by federal laws

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved International Reach of U.S. Anti- discrimination Laws  Civil Rights Act (1991)U.S. citizens  Civil Rights Act (1991) protects U.S. citizens (but not foreign nationals) employed in a foreign country by U.S.-controlled employers  Foreign operations not controlled by U.S. employers are not covered  The law contains an express exception that protects U.S.-controlled employers from conflicting foreign laws