Employment Discrimination

 Fifth Amendment – Prohibits the federal government from: ◦ Depriving individuals of “life, liberty, or property” without due process of law  Fourteenth Amendment – Prohibits state governments from: ◦ Violating an individual’s right to due process and equal protection

 Title VII ◦ Illegal for employers with 15 or more employees to discriminate on the basis of race, color, religion, sex, or national origin

 Prohibited activities ◦ Disparate treatment  Step 1 – Plaintiff presents evidence that:  He belongs to a protected category  He was treated differently from other similar people who are not protected  Prima facie: From Latin, meaning “from its first appearance,” something that appears true upon first look

 Prohibited activities ◦ Disparate treatment  Step 2 – Defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons  Step 3 – To win, plaintiff must prove that the employer intentionally discriminated by showing that:  Reasons offered were simply pretext  Discriminatory intent is more likely than not

 Prohibited activities ◦ Disparate impact  Step 1 – Plaintiff must present a prima facie case  Step 2 – Defendant must offer some evidence that the employment practice was a job-related business necessity  Step 3 – To win, plaintiff must prove either that:  Employer’s reason is a pretext or that other, less discriminatory, rules would achieve the same results

 Prohibited activities ◦ Hostile work environment  Sexual harassment – Unwelcome sexual advances  Requests for sexual favors  Severe verbal or physical conduct of sexual nature that interfere with an employee’s ability to work  Categories:  Quid pro quo: One thing in return for another  Hostile work environment

 Prohibited activities ◦ Hostile work environment  Same-sex harassment  Employer liability for sexual harassment  The company is also liable for the employee’s conduct  Hostile environment based on race  Hostile environment based on color  Hostile environment based on national origin

 Prohibited activities ◦ Retaliation – Employer has done something that would deter a reasonable worker from complaining about discrimination

 Religion ◦ Employers cannot discriminate against a worker because of his religious beliefs  Sex ◦ Gender must be irrelevant to employment decisions  Family responsibility discrimination ◦ Parenthood is a protected category under Title VII

 Sexual orientation ◦ Half the states and hundreds of cities have statutes that prohibit discrimination based on sexual orientation  Gender identity ◦ Discriminating against someone for being transgender is a violation of Title VII

 Merit ◦ Defendant is not liable if he shows that the person he favored was the most qualified  Seniority ◦ Legitimate seniority system is legal even if it perpetuates past discrimination

 Bona fide occupational qualification (BFOQ): ◦ Employer is permitted to establish discriminatory job requirements if they are essential to the position in question ◦ Employers consider customer preference in such situations  Safety  Privacy  Authenticity

 Affirmative action – Goal is to remedy the effects of past discrimination ◦ Sources  Litigation  Voluntary action  Government contracts

 Employee may not be paid at a lesser rate than employees of the opposite sex for equal work ◦ Equal work – Tasks that require equal skill, effort, and responsibility under similar working conditions

 An employer may not fire, refuse to hire, or fail to promote a woman because she is pregnant

 An employer with 20 or more workers may not fire, refuse to hire, fail to promote or otherwise: ◦ Reduce a person’s employment opportunities because he is 40 or older  Plaintiff can show discrimination in: ◦ Disparate treatment ◦ Disparate impact ◦ Hostile work environment

 Step 1 – Plaintiff must show that: ◦ He is 40 or older ◦ He suffered an adverse employment action ◦ He was qualified for the job for which he fired or not hired ◦ Replaced by younger person  Step 2 – Employer must present evidence that its decision was based on legitimate, nondiscriminatory reasons  Step 3 – Plaintiff must show that employer’s reasons are a pretext

 Step 1 – Plaintiffs must present a prima facie case that employment practice excludes a number of people 40 and older  Step 2 – Employer wins if decision was based on “reasonable factor other than age”

 Bona fide occupational qualification ◦ To set a maximum age, employer must show that:  Age limit is necessary to the essence of business  Virtually everyone that age is unqualified for the job  Age is the only that an employer can determine who is qualified

 Rehabilitation Act of 1973 ◦ Prohibits discrimination on the basis of disability by:  Executive branch of the federal government  Federal contractors  Entities that receive federal funds

 Disability ◦ Disabled person is:  Someone with a physical or mental impairment that limits a major life activity  Someone who is regarded as having such an impairment

 Accommodating the disabled worker ◦ Reasonable accommodation – Employers are expected to:  Make facilities accessible  Permit part-time schedules  Acquire or modify equipment  Assign a disabled person to an open position that he can perform ◦ Can perform essential functions of the job ◦ Accommodation is not reasonable if it would create undue hardship for the employer

 Medical exams – Three stages ◦ With applicants, employer may not require medical exam, interviewer may ask:  Whether an applicant can perform the work  Applicant to demonstrate the work  What accommodation applicant would need

◦ With entering employees, medical test must be:  Required of all employees  Treated as confidential ◦ With existing employees, medical exam are required to determine:  If a worker is still able to perform the existing function of the job

 An employer may not discriminate against someone because of his relationship with a disabled person  Physical and mental abilities are to be treated the same  Disparate treatment and disparate impact  Hostile work environment

 Employers with 15 or more workers may not require: ◦ Genetic testing or discriminate against workers because of their genetic makeup  Health insurers may not use such information to decide coverage or premiums

 Constitutional claims ◦ People bringing a claim under the Constitution must file a suit on their own  Civil Rights Act of 1866 ◦ Advantages over Title VII  Four-year statute of limitations  Unlimited compensatory and punitive damages  Applicability to all employers

 Rehabilitation Act of 1973 ◦ Statute is enforced by the EEOC, Department of Labor, and Department of Justice  Other statutory claims ◦ EEOC responsible for enforcing:  Title VII  Equal Pay Act  Pregnancy Discrimination Act  ADEA  ADA  GINA