Chapter 13 - Employee Discrimination

Question 1

Primary theories for proving employment discrimination

Answer 1

Primary theories for proving employment discrimination:

Disparate Treatment: must prove that the defendant intentionally discriminated against the plaintiff because of his/her status in a protected class

Disparate Impact: defendant utilized facially neutral practices that have an adverse impact on a protected class

Question 2

Sexual harassment and how a plaintiff must prove it

Answer 2

Sexual harassment and how a plaintiff must prove it:
plaintiff must prove:
1. Harassing conduct is unwelcome
2. Harassing conduct is because of sex
3. Harassing conduct resulted in tangible employment action, or was sufficiently severe or pervasive as to unreasonably alter the conditions of employment and create a hostile, abusive environment
4. If plaintiff proves all three elements, the question then becomes whether the employer is liable.

Question 3

Bona fide occupational qualification (BFOQ) defense

Answer 3

Bona fide occupational qualification (BFOQ)* defense:
applies to discrimination on the basis of sex, religion or national origin but does not apply to discrimination on the basis of race or color. Only if being of a particular sex (religion or national origin) is essential to a person’s ability to do the job.

An employer will be required to prove that the job performance affected by the classification is the “essence” of the employer’s business operation.

Question 4

Two theories under which plaintiff can bring sexual harassment case

Answer 4

Two theories under which plaintiff can bring sexual harassment case:

1. Quid pro quo – sex in exchange for job
2. Hostile work environment – workplace rendered offensive and abusive by conduct with sexual content, where no employment benefit is gained or lost

Question 5

Civil Rights Act

Answer 5

Civil Rights Act (1964):
prohibits employment discrimination on the basis of race, color, sex, religion or national origin with respect to hiring, discharge and all aspects of the employment relationship

Question 6

Brown v. Board of Education

Answer 6

Brown v. Board of Education (1954):

Supreme Court overruled Plessy Vs. Ferguson – “separate, but equal”

Question 7

Liability under Title VII

Answer 7

Liability under Title VII:
employer liable for sexual harassment if victim proves:

1. unwanted harassment based on sex sufficiently severe and pervasive as to unreasonably interfere with work performance or create a hostile work environment
2. if the wrongdoer was a coworker, that the employer negligently failed to prevent or remedy the harassment where the employer knew or should have known of it; if the wrongdoer is a supervisor, the employer will be vicariously liable if the employee suffered a tangible employment action;

Question 8

Proof of employment discrimination

Answer 8

Proof of employment discrimination:

1. Plaintiff belongs to a protected class;
2. plaintiff applied for a job for which the defendant was seeking applicants;
3. plaintiff was qualified for the job;
4. plaintiff was denied the job;
5. and the position remained open and the employer continued to seek applicants.

Question 9

Defenses to employment discrimination

Answer 9

Defenses to employment discrimination:
1. Seniority - bona fide seniority system

2. Job-Related Employee Testing -test in question should be job-related and consistent with business necessity
3. Four-Fifths Rule -if the “selection ratio” for one group (i.e., one race, sex, etc.) is less than 80% (4/5ths) of the “selection ratio” for another group (another race, etc.), adverse impact is established.

Question 10

Equal Employment Opportunity Commission (EEOC)

Answer 10

Equal Employment Opportunity Commission (EEOC):
the agency that oversees Title VII and many of the other antidiscrimination laws. It investigates complaints of discrimination and attempts to resolve disputes by conciliation

Question 11

Glass ceiling

Answer 11

Glass ceiling: an unofficially acknowledged barrier to advancement in a profession, especially affecting women and members of minorities.

Question 12

Anti-retaliation under Civil Rights Act

Answer 12

Anti-retaliation under Civil Rights Act:
prohibits an employer from discriminating against an employee for engaging in a “protected activity.” Protected activities include opposing an employment practice that is reasonably believed to violate Title VII, or participating in any manner in a charge made under Title VII, including offering testimony on behalf of a co-worker.

Question 13

Affirmative Action

Answer 13

Affirmative Action:
an action or policy favoring those who tend to suffer from discrimination, especially in relation to employment or education; positive discrimination.