1. Chapter 35: Employment Discrimination and Diversity
Clarkson  Miller  Cross
Chapter 35: Employment Discrimination and Diversity

2. §1: Title VII of the Civil Rights Act of 1964
Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin.
“Sex” now includes pregnancy. 

3. Title VII of the Civil Rights Act of 1964
Applies to employers involved with interstate commerce with 15 or more employees.
In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices.

4. Title VII of the Civil Rights Act of 1964
Equal Employment Opportunity Commission.
Monitors compliance with Title VII.
Limits on Class Actions.
Wal-Mart Stores, Inc. v. Dukes (2011).

5. Title VII of the Civil Rights Act of 1964
Intentional Discrimination.
Disparate-Treatment Discrimination. Prima Facie case:
Plaintiff a member of a protected class;
Applied, qualified for job,
Rejected by employer; and
Employer sought other applicants.

6. Title VII of the Civil Rights Act of 1964
Intentional Discrimination.
Disparate-Treatment Discrimination.
Once prima facie case proved, burden of proof shifts to employer who must present defense and evidence.
CASE Dees v. United Rentals North America, Inc. (2013).

7. Title VII of the Civil Rights Act of 1964
Unintentional Discrimination.
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. 

8. Title VII of the Civil Rights Act of 1964
Unintentional Discrimination.
Disparate-Impact Discrimination.
Pool of Applicants Test: plaintiff shows percentage of the protected class in employer’s workforce does not reflect percentage in local labor market. 

9. Title VII of the Civil Rights Act of 1964
Unintentional Discrimination.
Disparate-Impact Discrimination.
Rate of Hiring: plaintiff compares selection rates of members of protected class with nonmembers in employer’s workforce. According to EEOC, less than 80% may show disparate impact.

10. Title VII of the Civil Rights Act of 1964
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. 

11. Title VII of the Civil Rights Act of 1964
Discrimination Based on Race, Color, and National Origin.
Policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job. 

12. Title VII of the Civil Rights Act of 1964
Discrimination Based on Race, Color, and National Origin.
“Reverse” Discrimination: Title VII also protects against discrimination against majority group individuals, such as white males. 

13. Title VII of the Civil Rights Act of 1964
Discrimination Based on Religion.
Employers must “reasonably accommodate” the “sincerely held” religious practices of its employees, unless to do so would cause “undue hardship” to employer’s business.

14. Title VII of the Civil Rights Act of 1964
Discrimination Based on Gender.
Employers are prohibited from classifying jobs based on gender, unless employer can prove gender is essential to the job.
Pregnancy Discrimination.
Wage Discrimination: Lilly Ledbetter Fair Pay Act (2009).

15. Title VII of the Civil Rights Act of 1964
Constructive Discharge.
Employer causes working conditions to be so intolerable that a reasonable person would feel compelled to quit.
Applies to all Title VII discrimination. 

16. Title VII of the Civil Rights Act of 1964
Constructive Discharge.
Proving a case:
Plaintiff must present objective proof of intolerable working conditions which employer knew about, failed to correct.
Employee’s resignation must be a foreseeable result of working conditions.

17. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
The Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include prohibitions against sexual harassment. 

18. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
There are currently two forms of sexual harassment:
Quid Pro Quo. 
Hostile Work Environment. 

19. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
Quid Pro Quo.
Involves demands for sexual favors are demanded in return for job opportunities, promotions, salary, increases or other tangible benefits.

20. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
Hostile Work Environment.
Occurs when workplace is permeated with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment and create an abusive working environment.

21. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
Harassment by Supervisors.
For employer to be liable for a supervisor’s sexual harassment, a supervisor must have taken a tangible employment action against the employee.

22. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
The Ellerth / Faragher Affirmative Defense has two elements:
(1) Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior, and 

23. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
The Ellerth / Faragher Affirmative Defense has two elements:
(2) Plaintiff-employee must have unreasonable failed to take advantage of preventative or corrective opportunities to avoid harm. 

24. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
The Ellerth / Faragher Affirmative Defense:
If an employer can prove both elements, he will not be liable for supervisor’s harassment.

25. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
Retaliation by Employers.
Tangible employment action against employee that complains about sexual harassment or other Title VII violations.
CASE Morales-Cruz v. University of Puerto Rico (2012).

26. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
Harassment by Co-Workers.
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.

27. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
Same-Gender Harassment.
In 1998, Supreme Court held in Oncale v. Sundowner Offshore Services that Title VII prohibitions against sexual harassment extended to same-sex harassment. Easier to prove when harasser is homosexual.

28. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
Sexual Orientation.
Title VII does not prohibit discrimination based on orientation.
Online Harassment.
Hostile work environment created using company chat, blogs, . 

29. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
Online Harassment.
Employers can avoid liability with prompt remedial action.
Employees may be discharged for using company computers to distribute offensive material to coworkers.

30. Title VII of the Civil Rights Act of 1964
Sexual Harassment.
Remedies. Liability may be extensive. Plaintiff may receive:
Reinstatement.
Back Pay.
Retroactive Promotions; and
Damages.

31. §2: Discrimination Based on Age
The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers. 

32. ADEA Procedures under the ADEA.
Plaintiff must show discrimination was THE reason for adverse employment action.
CASE Mora v. Johnson Memorial Foundation, Inc. (2010).

33. ADEA Replacing Older Workers with Younger Workers.
Discrimination must be based on age bias; the bigger the age gap, the more likely the bias.
State Employees Not Covered by the ADEA.

34. §3: Discrimination Based on Disability
The Americans with Disability Act (ADA) requires employers to offer “reasonable accommodation” to employees or applicants with a disability who are otherwise qualified for the job they hold or seek.

35. Discrimination Based on Disability
ADA Procedures. Plaintiff must show she:
Has a “disability.”
Is otherwise qualified for the employment in question; and
Was excluded from employment solely because of the disability.

36. Discrimination Based on Disability
What Is a “Disability”?
Physical or mental impairment that “substantially limits one or more of major life activities; or
A record of such impairment; or
Being regarded as having such an impairment. 

37. Discrimination Based on Disability
What Is A “Disability”?
2008 Amendments Broaden Definition.
Reversed Supreme Court’s narrow definition of disability.
Now determined on a case-by-case basis.

38. Discrimination Based on Disability
Reasonable Accommodation.
If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made.

39. Discrimination Based on Disability
Reasonable Accommodation.
Job Applications and Physical Exams.
Modifications to applications and selection process so those with disabilities can compete.
Employers are restricted on pre-hiring questions and physical exams.

40. Discrimination Based on Disability
Reasonable Accommodation.
Substance Abusers: only applies to FORMER drug users completed or going through supervised drug rehabilitation.
Employers can fire an alcoholic is he poses substantial risk.

41. Discrimination Based on Disability
Reasonable Accommodation.
Health Insurance Plans: equal access to health care.

42. §4: Defenses to Employment Discrimination
Four basic types of defenses:
Business Necessity.
Bona Fide Occupational Qualification.
Seniority Systems.
After-Acquired Evidence. 

43. Defenses to Employment Discrimination
Business Necessity.
Requires employer to demonstrate a job qualification is reasonably necessary to the legitimate conduct of employer’s business.
Business necessity is a defense to disparate impact discrimination.

44. Defenses to Employment Discrimination
BFOQ.
Requires an employer to show a particular skill is necessary for the performance of a particular job.
Used in cases of disparate treatment discrimination.

45. Defenses to Employment Discrimination
Seniority Systems.
Conditions distribution of job benefits on length of time one has worked for an employer.
Defense only if it is a bona fide system, not designed to evade effects of discrimination laws.

46. Defenses to Employment Discrimination
After-Acquired Evidence.
Evidence of misconduct, committed by employee who is suing an employer for employment discrimination. 

47. Defenses to Employment Discrimination
After-Acquired Evidence.
Uncovered during the process of discovery conducted in preparation for a defense against the suit.
Not an absolute defense for employer.

48. § 5: Affirmative Action
Designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes. 

49. Affirmative Action Constitutionality of Affirmative Action Programs.
May violate 14th Amendment. (Adarand Construction case).
Constitutional only if attempts to remedy past discrimination and does not use of quotas or preferences.

50. Affirmative Action Affirmative Action in Schools.
Generally, an admissions program that automatically award minority students extra “points” is unconstitutional.
See Fisher v. University of Texas (2013).