1. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 1 Chapter 24 Discrimination in Employment Chapter 24 Discrimination in Employment 24-1 24-1Legal versus Illegal Discrimination 24-2 24-2Proving Illegal Discrimination

2. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 2 Chapter 24 24-1 24-1Legal versus Illegal Discrimination GOALS Recognize the difference between legal and illegal employment discrimination List the various statutes governing employment discrimination

3. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 3 Chapter 24 WHEN IS DISCRIMINATION ILLEGAL? The government has become involved in making sure that choices within the workplace are made on the proper bases and do not reflect illegal employment discrimination. Such discrimination is defined as treating individuals differently on the basis of race, color, gender, pregnancy and pregnancy intention, age, religion, disability, and national origin.

4. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 4 Chapter 24 WHEN IS DISCRIMINATION ILLEGAL? Protected classes Race and color – All persons who are not white. Gender – Sexual harassment is also illegal. Pregnancy – Includes current condition or plans. Age – People age 40 years old or older. Religion – Includes religious beliefs of any kind. Disability – Both physical and mental disabilities.

5. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 5 Chapter 24 WHEN IS DISCRIMINATION ILLEGAL? Protected classes (cont.) National origin – Based on country of origin. Those who do not speak English or are not US citizens are protected to a limited extend. Other – Certain other groups are making a case for being a protected class. These include the obese, those with height issues, smokers, and those not considered attractive.

6. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 6 Chapter 24 WHEN IS DISCRIMINATION ILLEGAL? Scope of protection In all aspects of employment – The protected classes cannot be discriminated against in hiring, pay, promotions, training, overtime, educational opportunities, travel requirements, shift rotations, firings, layoffs, post-employment letters of recommendation, or any other aspect of employment.

7. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 7 Chapter 24 WHEN IS DISCRIMINATION ILLEGAL? Scope of protection (cont.) Governing most employers – Most employers that have 15 or more employees and are engaged in interstate commerce are subject to federal employment discrimination laws. Agencies of state governments, employment agencies, and labor unions generally also are subject to anti- discrimination laws.

8. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 8 Chapter 24 Name the characteristics that, under federal law, employers may not consider in any employment-related decision.

9. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 9 Chapter 24 LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION Title VII of the Civil Rights Act of 1964 – With some exceptions, this Act forbids employers, employment agencies, and unions from discriminating in hiring, paying, training, promoting, or discharging employees on the basis of race, color, religion, national origin, or sex. An employer may discriminate in selecting one worker over another if the standard set is necessary for proper performance on the job.

10. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 10 Chapter 24 LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION Title VII of the Civil Rights Act of 1964 (cont.) Title VII created the Equal Employment Opportunity Commission (EEOC) and gave it the authority to investigate and settle complaints of job discrimination. If an employer has discriminated in the past, the courts may mandate an affirmative action plan to remedy the past discrimination. The plan must include positive steps aimed at offsetting past discrimination.

11. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 11 Chapter 24 LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION Equal Pay Act of 1963 – This Act prohibits wage discrimination on the basis of sex. This means that when the same skill, effort, and responsibility are required and when the job is performed under similar working conditions, women must be paid the same as men.

12. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 12 Chapter 24 LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION Equal Pay Act of 1963 (cont.) Differences of pay are allowed if based on any of the following: Merit system Seniority system System basing pay on quantity or quality of production System based on any factor other than gender

13. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 13 Chapter 24 LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION Age Discrimination in Employment Act of 1967 – This Act forbids discrimination against workers 40 years of age and older in any employment practice. Exceptions are made when age is a necessary consideration for job performance. Such occupations include bus drivers, fire fighters, and police officers.

14. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 14 Chapter 24 LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION Americans with Disabilities Act – The Americans with Disabilities Act (ADA) requires that employers not engage in unjustified discrimination against disabled persons on the basis of their disability. A disability as defined by the ADA is a physical or mental impairment that substantially limits one or more of life’s major activities.

15. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 15 Chapter 24 LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION Americans with Disabilities Act (cont.) Current use of illegal drugs is not a disability. Sex-related traits or homosexuality is not covered by the Act. A person with a contagious disease may be protected. Employers must make reasonable accommoda- tions for the qualified disabled worker. A reasonable accommodation is not required if it would produce an undue hardship for the employer.

16. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 16 Chapter 24 LAWS THAT PROHIBIT EMPLOYMENT DISCRIMINATION Pregnancy Discrimination Act – This Act is a statute that makes it illegal to discriminate because of pregnancy, childbirth, or related medical conditions. The Act also makes it illegal to discriminate in the providing of fringe benefits on these bases.

17. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 17 Chapter 24 Name the laws discussed in this section that prohibit unjustified discrimination in employment.

18. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 18 Chapter 24 24-2 24-2Proving Illegal Discrimination GOALS Discuss how a case based on unequal treatment is proven Describe how a case based on disparate impact is proven Recognize the forms of sexual harassment

19. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 19 Chapter 24 UNEQUAL TREATMENT CASES Evidence of unequal treatment – Unequal treatment means that an employer intentionally treats members of a protected class less favorably than other employees. Cases based on unequal treatment have taken several forms.

20. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 20 Chapter 24 UNEQUAL TREATMENT CASES Evidence of unequal treatment (cont.) Cases based on direct evidence – Most direct- evidence litigation focuses on decisions related to aspects of the employment relationship other than hiring. To win a case where the discrimination is admitted, the employee need only prove that she or he was denied employment because of membership in a protected class.

21. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 21 Chapter 24 UNEQUAL TREATMENT CASES Evidence of unequal treatment (cont.) Cases based on indirect evidence – Most cases involve situations where the employer denies any intention to illegally discriminate. To establish a case, an employee must show the following: The person was a member of a protected class. The person applied for the job and was qualified. The person was rejected. The employer held the job open and sought other persons with similar qualifications.

22. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 22 Chapter 24 UNEQUAL TREATMENT CASES Evidence of unequal treatment (cont.) Cases based on statistics – In some cases, the government can initiate proceedings against a company for employment discrimination when there is evidence of a pattern and practice of discrimination. The government merely shows a statistically significant difference between the protected class composition of the pool of qualified applicants and the workforce.

23. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 23 Chapter 24 UNEQUAL TREATMENT CASES Employer’s defenses Business necessity – The employer’s most common defense is that the employee’s skills or work history was the reason for not hiring. This general defense is sometimes called business necessity or job relatedness. Business necessity means that the employer’s actions were meant to advance the business rather than to create unjustified discrimination.

24. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 24 Chapter 24 UNEQUAL TREATMENT CASES Employer’s defenses (cont.) Bona fide occupational qualification – A bona fide occupational qualification (BFOQ) is a job requirement that compels discrimination against the protected class. An example would be hiring actors for a role. To establish the BFOQ, the discrimination must truly be essential to the business. The fact that discrimination is helpful is not enough.

25. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 25 Chapter 24 UNEQUAL TREATMENT CASES Employer’s defenses (cont.) Seniority – A bona fide seniority system is one that rewards employees based on the length of employment rather than merit and is not intended to discriminate. The Supreme Court will permit seniority to be used even when it perpetuates past discrimination. Pretexts – Employers sometimes assert business necessity or BFOQ as a pretext, or a cover, for discriminating.

26. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 26 Chapter 24 What are the three main bases for unequal treatment cases?

27. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 27 Chapter 24 DISPARATE IMPACT CASES Many companies have a policy that is regarded as neutral on its face. This means that the policy makes no reference to a protected class. Consequently, the policy has a disparate, or different, impact on a protected class. Disparate impact indicates that the policy eliminates more members of protected classes than members of the majority.

28. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 28 Chapter 24 DISPARATE IMPACT CASES To win a suit claiming disparate impact, the employee need not prove an intention to discriminate. However, the employee must identify a specific employment practice and show statistically that the practice excludes members of a protected class. Even then, the employee will lose if the employer is able to show that there is a legitimate business necessity for the practice.

29. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 29 Chapter 24 DISPARATE IMPACT CASES By statistical proof – The employee must establish that fewer members of the protected class qualified for the job when the challenged employment practice was used than when it was not. This involves examining two groups:

30. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 30 Chapter 24 DISPARATE IMPACT CASES By statistical proof (cont.) The applicant pool – Those qualified for the job when that challenged qualification practice is not considered. The workforce pool – Persons actually in the employer’s workforce. If the percentage in the applicant pool is statistically higher than the percentage in the workforce group, this suggests disparate impact. Causation must also be proven to establish disparate impact.

31. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 31 Chapter 24 DISPARATE IMPACT CASES Employer’s defenses – Even if the employee shows disparate treatment, if the challenged practice is justified by business necessity, there is no liability. The employer can also utilize the defenses of bona fide occupational qualification and seniority to prove its case.

32. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 32 Chapter 24 What does disparate impact mean?

33. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 33 Chapter 24 SEXUAL HARASSMENT CASES Quid pro quo – Quid pro quo means that one thing is exchanged for another. The employer may offer any term, condition, or privilege of employment, such as a raise or a favorable evaluation or keeping the job, in exchange for something (often sexual favors) from the employee.

34. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 34 Chapter 24 SEXUAL HARASSMENT CASES Hostile environment – A hostile environment arises when unwelcome sexual comments, gestures, or contact interfere with an employee’s ability to work. If the sexual harassment is a result of the conduct of a supervisor, the employer is strictly liable.

35. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 35 Chapter 24 SEXUAL HARASSMENT CASES Hostile environment (cont.) If the conduct of non-supervisory employees causes the problem, the employer is liable only when the harassment is either known or should have been known by the supervisors and they failed to act effectively to prevent further occurrences.

36. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 36 Chapter 24 What are the two forms of sexual harassment?

37. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 37 Chapter 24 PREVENT LEGAL DIFFICULTIES As an employee... Approach every job in a professional manner. Seek to be judged solely on the basis of your potential or actual job performance. Do not create an environment hostile to any protected class. If you suspect that you are being discriminated against because of your membership in a protected class, contact the Equal Employment Opportunity Commission (EEOC). Continued on the next slide

38. Law for Business and Personal Use © South-Western, a part of Cengage LearningSlide 38 Chapter 24 PREVENT LEGAL DIFFICULTIES As an employer... Do not ask questions on job applications that require the disclosure of race, religion, sex, national origin, handicap, or pregnancy status or intention. Do not ask questions in job interviews about marital status, maternity plans, child care, birth control practices, number of children, or other related factors. Train supervisors to avoid any activity that could be taken as sexual harassment and to respond effectively to complaints about like conduct by subordinates.