1. THE LEGAL ENVIRONMENT TODAY, 8E ROGER LEROY MILLER / FRANK B. CROSS © 2016 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.

2. CHAPTER 18 EMPLOYMENT DISCRIMINATION © 2016 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.

3. LEARNING OBJECTIVES 1.Generally, what kind of conduct is prohibited by Title VII of the Civil Rights Act? 2.What is the difference between disparate-treatment discrimination and disparate-impact discrimination? 3.What remedies are available under Title VII of the Civil Rights Act? © 2016 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.

4. LEARNING OBJECTIVES (CONT’D) 4.What federal act prohibits discrimination based on age? 5.What are three defenses to claims of employment discrimination? © 2016 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.

5. TITLE VII OF THE CIVIL RIGHTS ACT Prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin “Sex” now includes pregnancy Applies to employers involved with interstate commerce with 15 or more employees © 2016 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. LO-1

6. TITLE VII OF THE CIVIL RIGHTS ACT The Equal Employment Opportunity Commission (EEOC) Monitors compliance with Title VII Generally only investigates “priority” cases like retaliatory firings © 2016 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.

7. TITLE VII OF THE CIVIL RIGHTS ACT Intentional/Unintentional Discrimination Intentional: Disparate-treatment discrimination Applicant must prove: Is a member of a protected class Applied, is qualified, and was rejected for a job Employer continued to seek applicants Burden then shifts to employer who must articulate a legal reason for not hiring © 2016 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. LO-2

8. TITLE VII OF THE CIVIL RIGHTS ACT Unintentional: Disparate-impact discrimination Occurs when a protected group of people is adversely affected by an employer’s practices, procedures, or tests, even though they do not appear to be discriminatory Pool of applicants test: plaintiff shows percentage of the protected class in employer’s workforce does not reflect percentage in local labor market Rate of hiring: plaintiff compares rates of members of protected class with nonmembers in employer’s workforce. Less than 80% may show disparate impact © 2016 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.

9. TITLE VII OF THE CIVIL RIGHTS ACT Discrimination Based on Race, Color, and National Origin Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin. Reverse Discrimination: Title VII also protects against discrimination against majority group individuals, such as white males. © 2016 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.

10. TITLE VII OF THE CIVIL RIGHTS ACT Discrimination Based on Religion Employers must reasonably accommodate sincerely held religious practices, unless to do so would cause undue hardship to employer’s business. © 2016 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.

11. TITLE VII OF THE CIVIL RIGHTS ACT Discrimination Based on Gender Employers are prohibited from classifying jobs based on gender, unless employer can prove gender is essential to the job. Women impacted by pregnancy must be treated the same as other employees. Requirement of equal pay for equal work at the same business © 2016 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.

12. TITLE VII OF THE CIVIL RIGHTS ACT Constructive Discharge Occurs when an employer causes working conditions to be so intolerable that a reasonable person would quit Proving constructive discharge Plaintiff must prove intolerable working conditions, which employer knew about and failed to correct Employee’s resignation is a foreseeable result of working conditions Applies to all Title VII discrimination © 2016 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.

13. TITLE VII OF THE CIVIL RIGHTS ACT Sexual Harassment Quid pro quo harassment Sexual favors are demanded in return for job opportunities, promotions, salary, increases, etc. Hostile-environment harassment The workplace has discriminatory intimidation, ridicule, or insults so severe as to alter the conditions of the victim’s employment and create an abusive working environment. © 2016 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.

14. TITLE VII OF THE CIVIL RIGHTS ACT Harassment by supervisors A supervisor must have taken a tangible employment action against the employee. The Ellerth/Faragher affirmative defense Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior, and Plaintiff- employee must have unreasonably failed to take advantage of preventative or corrective opportunities to avoid harm. If an employer can prove both elements, he will not be liable for supervisor’s harassment. Retaliation by employers Action would have dissuaded a reasonable worker from making or a discrimination claim © 2016 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.

15. TITLE VII OF THE CIVIL RIGHTS ACT Harassment by co-workers and others Employer generally liable only if employer knew or should have known and failed to take action. Notice to supervisor is sufficient under agency law. Employers may also be liable for harassment by non- employees. Same-gender harassment: also prohibited Sexual Orientation Harassment Not covered by Title VII © 2016 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.

16. TITLE VII OF THE CIVIL RIGHTS ACT Online Harassment Hostile work environment created using company chat, blogs, email Employers can avoid liability with prompt remedial action. Employees may be discharged for using company computers to distribute offensive material to coworkers. © 2016 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.

17. TITLE VII OF THE CIVIL RIGHTS ACT Remedies under Title VII Plaintiff may receive: Reinstatement Back pay Retroactive promotions Damages © 2016 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. LO-3

18. DISCRIMINATION BASED ON AGE The Age Discrimination in Employment Act (ADEA) protects individuals over 40 from workplace discrimination. Procedures under the ADEA Plaintiff must show discrimination was the reason for adverse employment action. Prima facie case Member of the protected age group Qualified for position from which discharged Discharged because of age discrimination © 2016 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. LO-4

19. DISCRIMINATION BASED ON AGE State Employees Not Covered by the ADEA Generally, states are immune from lawsuits brought by private individuals in federal court. © 2016 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.

20. DISCRIMINATION BASED ON DISABILITY Procedures Under the ADA To prevail, plaintiff must show: A disability She is otherwise qualified for the employment in question She was excluded from employment solely because of the disability Plaintiff must first exhaust her claim through the EEOC process. © 2016 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.

21. DISCRIMINATION BASED ON DISABILITY What Is a Disability? Physical or mental impairment that “substantially limits one or more of major life activities A record of such impairment Being regarded as having such an impairment © 2016 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.

22. DISCRIMINATION BASED ON DISABILITY Reasonable Accommodation Undue hardship If an employee can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. Job applications and physical exams Modifications to applications and selection process so those with disabilities can compete Restrictions on pre-hiring questions and physical exams Substance abuse Former use is considered a disability © 2016 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.

23. DEFENSES TO EMPLOYMENT DISCRIMINATION Business Necessity The employer must demonstrate a job qualification is reasonably necessary to the legitimate conduct of the business. For disparate impact discrimination Bona Fide Occupational Qualification Employer must show a particular skill is necessary for performance of the job. For disparate impact discrimination © 2016 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. LO-5

24. DEFENSES TO EMPLOYMENT DISCRIMINATION Seniority Systems Distribution of benefits is based on length of time one has worked for an employer Only a defense if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws A Lack of Motive Plaintiff must show there was a discriminatory motive as part of the case. © 2016 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.

25. DEFENSES TO EMPLOYMENT DISCRIMINATION After-Acquired Evidence of Employee Misconduct Evidence of employee’s misconduct uncovered during discovery in preparation for a defense against discrimination suit Not an absolute defense for employer but can limit damages © 2016 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.

26. AFFIRMATIVE ACTION Designed to “make up” for past discrimination by giving preferential treatment to protected classes Equal protection issues - Constitutional only if it attempts to remedy past discrimination and does not make use of quotas or preferences States can prohibit affirmative action programs. © 2016 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.