Title VII of Civil Rights Act of 1964 Employers with 15 + Employees No Discrimination in Terms or Conditions of Employment Based on Race, Color, Sex, Religion.
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Title VII of Civil Rights Act of 1964 Employers with 15 + Employees No Discrimination in Terms or Conditions of Employment Based on Race, Color, Sex, Religion or National Origin Remedies: Reinstatement, Backpay and Benefits, Legal Fees, Compensatory and Punitive Damages (limited - employer size) Defenses: BFOQ, Bona Fide Seniority System
NYS Human Rights Law Employers with 4+ Employees No Discrimination in Employment Based on: Race or Color Religion Sex National Origin Marital Status Disability Age >18 Criminal Record (If Not Job Related) Sexual Preference or Sexual Orientation
Discrimination under Title VII Disparate Treatment -- Intentional discrimination based on race, color, sex, etc. Disparate Impact -- discriminatory effect of apparently-neutral criteria that are not job related Pattern or Practice -- EEOC or govt. suit for widespread practice Retaliation or Reprisals
Disparate Impact Discrimination and Selection Validity Sec. 703(k) of Title VII of Civil Rights Act of 1964, as amended Disparate Impact -- shown by 4/5th’s Rule or Other Statistical Evidence Concern about labor market definition Job-related Validity -- Uniform Guidelines on Employee Selection
Seniority & Title VII S. 703(h) -- action pursuant to bona fide seniority system not a violation Teamsters -- what is a bona fide seniority system? –neutral on its face –origin free from discrimination –basis rational in light of industry –maintained free from discriminatory intent
The Equal Pay Act Equal Pay for Equal Work Equal Work Defined as – Equivalent Skills, Effort, Responsibility and Working Conditions Defenses –Seniority –Merit Pay –Productivity Pay –Factor Other than Sex
Family and Medical Leave Act Employers with 50+ employees Unpaid leave for employees for: –birth or adoption of child –foster care –serious medical condition for child, spouse, self or parents Right to return to same or equivalent position May require notice “Key employees” exempted
SEXUAL HARASSMENT Definition: 29 C.F.R. 1604.11 Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.
QUID PRO QUO HARASSMENT Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual
HOSTILE ENVIRONMENT Harris v. Forklift Systems, 114 S.Ct. 367 (1993) When the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated Reasonable Person or Reasonable Woman?
EMPLOYER LIABILITY Supervisory Employees: Agency Principles Co-Workers: Did Employer Know, or Should Have Known? Non-Employees: Extent of Employer’s Control, and Did Employer Know or Should Have Known?
EMPLOYER LIABILITY FOR SUPERVISORS’ HARASSMENT Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998) Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998) Does harassment result in tangible employment result? – If so, employer automatically liable – If not, employer can establish defense
EMPLOYER’S DEFENSE Two Parts: –employer must show exercised reasonable care to prevent & correct promptly sexual harassing behavior; & –employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by employer Goes to liability & damages
LEGAL REMEDIES FOR SEXUAL HARASSMENT Reinstatement, Promotion as appropriate Damages: Lost Wages & Benefits Compensatory Damages: Medical or Emotional Injury, Pain & Suffering Punitive Damages: Amount Limited Based on Employer Size Legal Fees for Plaintiff Court Injunction: Cease & Desist Order Possible Tort Liability as well
PREVENTION “An employer should take all steps necessary to prevent sexual harassment from occurring” -- EEOC Guidelines Educate and sensitize all employees Develop policy for dealing with complaints and appropriate sanctions for violations Publicize policy Take immediate action on complaints
EMPLOYER’S SEXUAL HARASSMENT POLICY Define Sexual Harassment (EEOC Guidelines & Practical Examples) Make It Clear Such Conduct Will Not Be Tolerated by Anyone Specify Penalties -- up to Termination Specify Procedures for Filing Complaints Designate Person to Receive and Investigate Complaints Protect Complainant from Reprisals or Retaliation
Civil Rights Acts of 1866 : 42 U.S.C. 1981 & 1983 S. 1981: Intentional Discrimination Based on Race Covers Employment Discrimination Suit for Compensatory & Punitive Damages, Legal Fees S. 1983: Deprivation of Rights Protected by Law Intentional Discrimination by Public Sector Employers Suit for Damages and Legal Fees
Age Discrimination in Employment Act Covers Employers with 20+ Employees No Discrimination Based on Age > 40 No Mandatory Retirement Age Defenses: BFOQ Executive Exemption Bonafide Seniority or Benefit Plan -- Cost Justification Factor Other Than Age
Americans with Disabilities Act Coverage : 15 or more employees 3 Part Definition of Disability Reasonable Accommodation of Otherwise Qualified Persons with a Disability Defenses: Direct Threat to Health or Safety Job Related Criteria Food Handler Defense -- HHS List Religious Entities
Rehabilitation Act 3 Part Definition of Disability Protects Otherwise Qualified Individuals with a Disability S 503: Federal Contractors (> $10K) subject to nondiscrimination obligation S. 504: Activities receiving federal funding can’t discriminate against otherwise qualified individuals with a disability
E.O. 11246 Federal Contractors ($10K) must agree not to discriminate on race, color, religion, sex or national origin Contractors with $50K and 50+ employees must have written affirmative action plan Utilization Analysis of Workforce Goals and Timetables to remedy underutilization of women and minorities
STATE EEO LEGISLATION Broad Protections -- go beyond Title VII and other federal legislation –Genetic Characteristics or Traits –Criminal Record –Marital or Family Status –Sexual Orientation (15 States + D.C.) Other Legislation: Whistleblower laws, Off Duty Conduct