Ch 30 Employment Discrimination

Question 1

Employment Opportunity before 1964

Question 2

The United States Constitution

Answer 2

• The courts have interpreted these provisions to prohibit employment discrimination by federal, state, and local governments.

Question 3

Civil Rights Act of 1866

Answer 3

-. It has been interpreted to prohibit racial discrimination in both private and public employment (except it does not apply to the federal government)

Question 4

Equal Pay Act of 1963

Answer 4

-Under the Equal Pay Act (EPA), a worker may not be paid at a lesser rate than employees of the opposite sex for equal work.

• However, unequal pay is legal if it is the result of:
  -Seniority
  -Merit
  -Quantity or quality of work
  -Any other factor other than sex

Question 5

The Civil Rights Act of 1964

Answer 5

-Under Title VII of the Civil Rights Act of 1964, it is illegal for employers with 15 or more employees to discriminate on the basis of race, color, religion, sex, or national origin.

• protected categories: Race, color, religion, sex, or national origin.

Question 6

Prohibited Activities
(Disparate Treatment, Disparate Impact, Retaliation, )

Answer 6

-To prove a disparate treatment case, the plaintiff must show that she was treated less favorably than others because of her sex, race, color, religion, or national origin.

-The required steps in a disparate treatment case are:

1. The plaintiff presents evidence that:
   -She belongs to a protected category under Title VII,
   -She suffered adverse employment action, and
   -This action occurred under conditions giving rise to an inference of discrimination.

• prima facie: From the Latin, meaning “from its first appearance,” something that appears to be true upon a first look.

2. -The defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons.
3. -To win, the plaintiff must now prove that the employer intentionally discriminated, although this motive can be inferred from differences in treatment.
   =She may prove her case by showing either that
   1.the reasons the employer offered were simply a pretext or
   2.that a discriminatory intent is more likely than not.

[Disparate Impact]
-Disparate impact applies if the employer has a rule that, on its face,is not discriminatory, but in practice excludes too many people in a protected category.
-The required steps in a disparate impact case are:

[Hostile Work Environment]
-Employers violate Title VII if they permit a work environment that is so hostile toward people in a protected category that it affects their ability to work.

(Sexual Harassment.)
-. There are two categories of sexual harassment:
* Quid pro quo: A Latin phrase that means, “one thing in return for another.”
* Hostile work environment

(Same-Sex Harassment.)

(#MeToo.)
=The #MeToo movement brought social media attention to sexual harassment and assault in the workplace, particularly in the entertainment industry. In response, some states passed laws that prohibit
1.nondisclosure provisions in settlement agreements involving sexual misdeeds and
2.nondisparagement rules that prohibit employees from criticizing their workplace.

behavior violates Title VII:
-Would you say or do this in front of your spouse or parents?
-What about in front of a colleague of the opposite sex?
-Would you like your behavior reported in your local newspaper?
-Does it need to be said or done at all?

(Hostile Environment Based on Race.)

(Hostile Environment Based on Color.)

(Hostile Environment Based on National Origin.)

(Employer Liability for Harassment.)
The Supreme Court has held
=The company is liable if it knew or should have known about the conduct and failed to stop it.
=Even if the company was unaware of the misbehavior, it is nonetheless liable if the victimized employee suffered a “tangible employment action” such as firing, demotion, or reassignment.
=If the company was unaware of the behavior and the victimized employee did not suffer a tangible employment action, the company is still liable unless it can prove that
1.it used reasonable care to prevent and correct harassing behavior and
2.the employee unreasonably failed to take advantage of the complaint procedure or other preventive opportunities provided by the company.

[Retaliation]
-Title VII also prohibits employers from retaliating against workers who oppose discrimination, bring a claim under the statute, or take part in an investigation or hearing. A defendant can defeat a retaliation claim by showing that there were other, nondiscriminatory reasons for his action.

Question 7

Religion

Answer 7

-Employers cannot discriminate against a worker because of his religious beliefs. In addition, employers must make reasonable accommodation for a worker’s religious practices unless the request would cause undue hardship for the business.

Question 8

Sex

Answer 8

-“gender must be irrelevant to employment decisions
-Title VII forbids sexual stereotyping

=The opinion said, “An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.”

Question 9

Appearance
(Sex, Attractiveness, Weight, Hair, )

Answer 9

[Sex]
-Employers may adopt different appearance standards for men and women, but these standards may not impose a greater burden on one sex than the other.

[Attractiveness]
-Unattractiveness is not a protected category under Title VII

[Weight]

[Hair]

Question 10

Parenthood
(Pregnancy, Parental Status, Parental Leaves,)

Answer 10

[Pregnancy]
-The Pregnancy Discrimination Act (PDA) is an amendment to the Civil Rights Act, which prohibits employers from firing, refusing to hire, or failing to promote a woman because she is pregnant

• Equal Employment Opportunity Commission (EEOC): The agency charged with enforcing federal discrimination law.

[Parental Status]
-Discrimination based on parental status is a violation of Title VII if it involves treating men and women differently

Question 11

Sexual Orientation and Transgender Status

Answer 11

The Supreme Court recently ruled that both sexual orientation and transgender status are protected categories under Title VII. Thus an employer may not consider these factors when making employment decisions

Question 12

Background and Credit Checks

Answer 12

-EEOC regulations prohibit companies from using criminal history information in a way that has an adverse impact on employees in a protected category if the background information is irrelevant in determining whether the employee is appropriate for the job

-Employers may not consider arrest records because that is not evidence of wrongdoing. The EEOC also discourages the use of credit checks because minorities tend to have worse credit ratings than Whites.

Question 13

Immigration

Answer 13

-Under Title VII, it is illegal for employers to discriminate against noncitizens because “national origin” is a protected category.

Question 14

Reverse Discrimination

Reverse discrimination: Making an employment decision that harms a white person or a man because of his gender, color, or race

Answer 14

• affirmative action:Programs that remedy the effects of past discrimination.

=Affirmative action is not required by Title VII, nor is it prohibited. Affirmative action programs have three different sources:
1. Litigation.
2. Voluntary action. Employers can voluntarily introduce an affirmative action plan to remedy the effects of past practices or to achieve (but not to maintain) equitable representation of minorities and women, provided that the plan is not too unfair to majority members
3. Government contracts. The government may use affirmative action programs when awarding contracts only if
1.it can show that the programs are needed to overcome specific past discrimination,
2.they have time limits, and
3.nondiscriminatory alternatives are not available.

Question 15

Defenses to Charges of Discrimination
(Merit, Seniority, Bona Fide Occupational Qualification, )

Answer 15

[Merit]
-A defendant is not liable if he shows that the person he favored was the most qualified

[Seniority]
-A legitimate seniority system is legal even if it perpetuates past discrimination.

[Bona Fide Occupational Qualification]
-An employer is permitted to establish discriminatory job requirements if they are essential to the position in question.

• bona fide occupational qualification (BFOQ): An employer is permitted to establish discriminatory job requirements if they are essential to the position in question.

-However, the courts recognize three situations in which employers may consider customer preference:
=Safety.
=Privacy. An employer may refuse to hire women to work in a men’s bathroom, and vice versa
=Authenticity. An employer may refuse to hire a man for a woman’s role in a movie. In addition, a court ruled that Disney could fire an Asian man from the Norwegian exhibit at its Epcot international theme park, not because he was Asian,

Question 16

AGE

Answer 16

-Under the Age Discrimination in Employment Act (ADEA), an employer with 20 or more workers may not fire, refuse to hire, fail to promote, or otherwise reduce a person’s employment opportunities because he is 40 or older.

Question 17

Disparate Treatment

Answer 17

-Under the ADEA, a disparate treatment case requires three steps:
1.The plaintiff must show that:
-He is aged 40 or older,
-He suffered an adverse employment action,
-He was qualified for the job for which he was fired or not hired, and
-He was replaced by a younger person.
2.The employer must present evidence that its decision was based on legitimate, nondiscriminatory reasons.
3.The plaintiff must show that:
-The employer’s reasons are a pretext;
-In fact, the employer intentionally discriminated; and
-But for the plaintiff’s age, the employer would not have taken the action it did.

-Note that the standard of proof is tougher in an age discrimination case than in Title VII litigation because, under the ADEA, the plaintiff must show that age was not just one factor, it was the deciding factor.

Question 18

Disparate Impact

Answer 18

-The ADEA prohibits disparate impact discrimination against existing employees only, not against job applicants.

-Under the ADEA a disparate impact case requires only two steps:

Question 19

Hostile Work Environment

Answer 19

-The court ruled that the ADEA prohibits a hostile work environment based on age

Question 20

Bona Fide Occupational Qualification

Answer 20

-To set a maximum age, the employer must show that:
* The age limit is reasonably necessary to the essence of the business and either
* Virtually everyone that age is unqualified for the job or
* Age is the only way an employer can determine who is qualified.

Question 21

Disability
30-4a
The Rehabilitation Act of 1973

Answer 21

-The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by the executive branch of the federal government, federal contractors, and entities that receive federal funds.

Question 22

Americans with Disabilities Act
(Disability, Accommodating the Disabled Worker, Relationship with a Disabled Person, Obesity, Mental Disabilities, Disparate Treatment and Disparate Impact, Hostile Work Environment, )

Answer 22

[Disability]
-A disabled person is someone with a physical or mental impairment that substantially limits a major life activity or the operation of a major bodily function or someone who is regarded as having such an impairment.

[Accommodating the Disabled Worker]
-Once it is established that a worker is disabled, employers may not discriminate on the basis of disability as long as the worker can, with reasonable accommodation, perform the essential functions of the job. An accommodation is unreasonable if it would create undue hardship for the employer.
(Reasonable Accommodation.)
-Make facilities accessible,
-Permit part-time schedules,
-Acquire or modify equipment, and
-Assign a disabled person to an open position that he can perform. (Note that the employer is not required to create a new job or find a perfect position, just a reasonable one.)

(Essential Functions of the Job.)
(Undue Hardship.)

[Medical Exams]
=Applicants. An employer generally may not require a medical exam or ask about disabilities, except that the interviewer may ask:
=Whether an applicant can perform the work (provided that the same question is asked of all applicants),
=For the applicant to demonstrate how he would perform the job, and
=(In the event that a disability is obvious) what accommodation the applicant would need.
=Entering employees.The company may require a medical test and make it a condition of employment, but the test must be:
=Required of all employees in similar jobs, whether or not they are disabled, and
=Treated as a confidential medical record (except for managers who need to know).
=Existing employees.
=An employer may require medical exams or discuss any suspected disability, but only to determine if a worker is still able to perform the essential functions of the job.

[Relationship with a Disabled Person]
-An employer may not discriminate against someone because of his relationship with a disabled person.

[Obesity]
- However, being morbidly obese (defined as having double the normal body weight) is a disability, no matter what the cause.

[Mental Disabilities]
- under EEOC rules, physical and mental disabilities are to be treated the same.

[Disparate Treatment and Disparate Impact]
-Both disparate treatment and disparate impact claims are valid under the ADA. The steps in a disparate treatment case are:
-To win a disparate impact case, the plaintiff must show that a policy that looks neutral falls more harshly on a protected group and cannot be justified by business necessity.

1
The plaintiff must offer prima facie evidence that the employer discriminated because of his disability.

2
The employer must then offer a legitimate, nondiscriminatory reason for its action.

3
To win, the plaintiff must now prove that the employer intentionally discriminated. She may do so either by showing that
1.the reasons offered were simply a pretext or
2.that a discriminatory intent is more likely than not.

[Hostile Work Environment]
-An employee is entitled to recovery under the ADA if she is subjected to a hostile work environment because of her disability

Question 23

Genetic Information Nondiscrimination Act

Answer 23

-Under GINA, employers with 15 or more workers may not require genetic testing or use information about genetic makeup or family medical history as a factor in hiring, firing, or promoting employees

Question 24

Hiring Practices

Interviews

The hiring process is an easy place for employers to go wrong. Here are some pitfalls to avoid.

Answer 24

It used to be that interviewers would ask all sorts of inappropriate questions about topics such as marital status and plans to have children. The following list provides guidelines to help interviewers comply with the laws in this chapter.

Question 25

Social Media

Answer 25

Almost all employers now rely on social media as a part of their hiring process.Footnote They may look at LinkedIn to find potential candidates or check Facebook for evidence of unprofessional behavior. These searches sometimes reveal information that is illegal for employers to act on, such as age, religion, pregnancy, or illness. Yet, sometimes employers do.

Question 26

Enforcement
30-7a
Constitutional Claims

The Civil Rights Act of 1866

People bringing a claim under the Constitution must file suit on their own.

Answer 26

-For plaintiffs alleging racial discrimination, the Civil Rights Act of 1866 offers substantial advantages over Title VII:

• A four-year statute of limitations (versus less than a year under Title VII)
• Unlimited compensatory and punitive damages (which, in one case, amounted to $7 million)Footnote
• Applicability to all employers, not just those with 15 or more employees

Question 27

The Rehabilitation Act of 1973

Answer 27

This statute is enforced by the EEOC (for claims against the executive branch of the federal government), the Department of Labor (for claims against federal contractors), and the Department of Justice (for claims against entities that receive federal funds).

Question 28

Other Statutory Claims

Answer 28

-Before a plaintiff can bring suit under any of these statutes (except the Equal Pay Act), she must first file a charge with the EEOC

Question 29

Chapter Conclusion

Answer 29

-This chapter began with an example from the country’s past, when discrimination was legal and many people were foreclosed from the American dream of opportunity and advancement.