1. EQUAL OPPORTUNITY IN EMPLOYMENT
CHAPTER 33
EQUAL OPPORTUNITY IN EMPLOYMENT
© 2010 Pearson Education, Inc., publishing as Prentice-Hall

2. Equal Opportunity in Employment
Right of all employees and job applicants:
To be treated without discrimination, and
To be able to sue employers if discriminated against.

3. Title VII of the Civil Rights Act of 1964
Outlaws job discrimination based on five protected classes:
Race
Color
National origin
Sex
Religion

4. Scope of Coverage of Title VII
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

5. Scope of Coverage of Title VII (continued)
Title VII prohibits discrimination in:
Hiring and firing
Work rules
Promotion and demotion
Payment of compensation and benefits
Availability of job training opportunities
Any other term, condition, or privilege of employment

6. Forms of Discrimination
Disparate Treatment
Employer discriminates against specific individual because race, color, national origin, sex, or religion.
Disparate Impact
Employer discriminates against an entire protected class.
Often proven by statistical data about employer’s employment practices.

7. Equal Employment Opportunity Commission (EEOC)
Federal administrative agency responsible for enforcing most federal antidiscrimination laws.
Empowered to:
Conduct investigations
Interpret statutes
Encourage conciliation between employees and employers
Bring suit to enforce law

8. Procedure for Bringing Title VII Action
Private complainant must file complaint with EEOC within 180 or 300 days of discrimination (depending on state).
EEOC is given the opportunity to sue the employer on the complainant’s behalf.
If EEOC chooses not to bring suit, it will issue a right to sue letter.
Complainant now may sue employer.

9. Remedies for Violations of Title VII
Successful plaintiff can recover:
Back pay and reasonable attorneys’ fees.
Possible equitable relief, including reinstatement and seniority.
Punitive damages for intentional discrimination.

10. Race, Color, and National Origin Discrimination
Race: refers to broad categories such as Black, Asian, Caucasian, and Native American.
Color: refers to the color of a person’s skin.
National Origin: refers to the country of a person’s ancestors or cultural characteristics.
E.g., Hispanics, persons of Middle Eastern descent.

11. 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.

12. Sexual Harassment
Lewd remarks, touching, intimidation, posting pinups, and other verbal or physical conduct of a sexual nature.
E.g., supervisor offering positive review in exchange for sex.
Hostile work environment.

13. Sexual Harassment (continued)
Employer may defend by showing that
employer exercised reasonable care to prevent and correct harassing behavior, and
That plaintiff failed to take advantage of employer’s programs or to otherwise avoid harm.

14. Other Actionable Sex Discrimination
Discrimination because of “pregnancy, childbirth, or related medical conditions.”
Same-sex discrimination.

15. Religious Discrimination
Discrimination based on a person’s religion or religious practices.
Includes nontraditional religions.
Employer has duty to reasonably accommodate an employee’s religious practices, observances, or beliefs if it does not cause an undue hardship for employer.
E.g., try to arrange schedule to give Sabbath as day off.

16. Defenses to Title VII Action
Merit
Seniority
Bona Fide Occupational Qualification (BFOQ)

17. 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.
E.g., only a woman can work as a wet nurse.
Exception is narrowly interpreted by the courts.

18. Civil Rights Act of 1866
All persons “have the same right to make and enforce contracts as is enjoyed by white persons.”
Prohibits racial and national origin employment discrimination.
Procedural requirements of Title VII do not apply.
No cap on damages.

19. Equal Pay Act
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

20. Criteria That Justify a Differential in Wages
Four criteria that justify a differential in wages:
Seniority
Merit
Quantity or quality of product
Any factor other than sex
Employer bears the burden of proving these defenses.

21. Age Discrimination in Employment Act
ADEA applies to employees who are 40 years of age and older.
Administered by EEOC.
Successful plaintiff may recover back wages, attorney fees, and equitable relief.

22. Age Discrimination in Employment Act (continued)
Prohibits age discrimination in all employment decisions, including:
Hiring
Promotions
Payment of compensation
Employee benefits
Other terms and conditions of employment
Prohibits mandatory retirement ages.

23. Americans with Disabilities Act
Employers and providers of public transportation, telecommunications, and public accommodations must accommodate individuals with disabilities.
Employers may not discriminate against qualified individuals with disabilities.

24. 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.

25. 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

26. Qualified Individual with a Disability
A person who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds.

27. Qualified Individual with a Disability (continued)
A disabled person is someone who:
Has a physical or mental impairment that substantially limits one or more of his or her major life activities,
Has a record of such impairment, or
Is regarded as having such impairment.

28. Forbidden Conduct
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.

29. ADA Procedure and Remedies
Aggrieved person must first file charge with EEOC.
EEOC may choose to take action, or
Issue right to sue letter.
Successful plaintiff can recover:
Back pay and reasonable attorneys’ fees.
Possible equitable relief, including reinstatement and seniority.
Punitive damages for intentional discrimination.

30. Affirmative Action
Certain job preferences given to minority, female, or other applicants when employer makes an employment decision.
May be voluntarily adopted, undertaken to settle discrimination action, or ordered by courts.
Legal if narrowly tailored to achieve compelling interest.

31. Reverse Discrimination
Title VII protects members of majority class.
Affirmative action plans may not have preestablished quotas.
Majority class members may sue for damages.

32. Retaliation
Employers may not retaliate against employee for filing charge of discrimination or participating in proceeding brought under Title VII, ADEA, or Section 1981.
E.g., dismissing, demoting, harassing.