Chapter 25 Notes Flashcards
A group of persons protected by specific laws because of the group’s defining characteristics, including race, color, religion, national origin, gender, age, and disability.
Protected Class
The most important statute covering employment discrimination. This prohibits discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, or gender at any stage of employment.
- Applies to employers of 15 or more employees and labor unions with 15 or more members, and labor unions that operate hiring halls, employment agencies, and state and local governing units or agencies.
- Special section of the act prohibits discrimination in most federal government employment.
Title VII of the Civil Rights Act
Members go regularly to be rationed jobs as they become available.
Hiring Halls
Monitors compliance with Title VII. A victim of alleged discrimination must file a claim with this commission before bringing a suit against the employer. The commission may then investigate the dispute and attempt to arrange an out-of-court settlement.
- If no agreement reached- may file a suit against the employer on the employee’s behalf.
- If no claim will be filed, will issue a “right to sue” that allows the victim to bring her own lawsuit against the employer.
- Generally only investigates “priority cases” (i.e. retaliatory discharge)
The Equal Employment Opportunity Commission (EEOC)
The United States Supreme Court issued an important decision in 2011 that limits the rights of employees-as a group, or class- to bring discrimination claims against their employer.
Limitations on Class Actions
- Disparate Treatment Discrimination
- Prima Facie Case
Intentional Discrimination
A form of employment discrimination that results when an employer intentionally discriminates against employees who are members of protected classes.
- Intentional discrimination by an employer against an employee.
Disparate-Treatment Discrimination
A case in which the plaintiff has produced sufficient evidence of his or her claim that the case will be decided for the plaintiff unless the defendant produces no evidence to rebut it.
- Latin for “at first sight”
- A fact that is presumed to be true unless contradicted by evidence.
- Burden shifts to the employer-defendant, who must articulate a legal reason for not hiring the plaintiff. If they can, burden shifts to plaintiff, who must then show the employer’s reason is a pretext and that the employers decision was actually motivated by discrimination.
Prima Facie Case
Not the true reason.
Pretext
- The plaintiff is a member of a protected class.
- The plaintiff applied and was qualified for the job in question.
- The plaintiff was rejected by the employer.
- The employer continued to seek applicants for the position and filled the position with a person not in a protected class.
Establishing Prima Facie Case of Disparate-Treatment Discrimination (Must show all of these)
Employers often use interviews and tests to choose from among a large number of applicants for job openings. Minimum educational requirements are also common. These practices and procedures may have unintentional discriminatory impact on a protected class.
- Disparate-Impact Discrimination
Unintentional Discrimination
Discrimination that results from certain employer practices or procedures that, although not discriminatory on their face, have a discriminatory effect.
- The complaining party must first show statistically that the employer’s practices, procedures, or tests are discriminatory in effect.
- Once plaintiff makes out prima facie case, the burden of proof shifts to the employer to show they were justified.
Disparate-Impact Discrimination
- Pool of Applicants
- Rate of Hiring
Two Way of Proving that Disparate-Impact Discrimination Exists
Comparing the employer’s workforce with the pool of qualified individuals available in the local labor market. The plaintiff can show that:
- As a result of educational or other job requirements or hiring procedures,
- The percentage of nonwhites, women, or members of other protected classes in the employer’s workforce
- Does not reflect the percentage of that group in the pool of qualified applicants.
- If the plaintiff can show a connection between the practice and the disparity, they have made a prima facie case and need not provide evidence of discriminatory intent.
Pool of Applicants
Comparing the employer’s selection rates of members and nonmembers of a protected class. When a job requirement or hiring procedure excludes members of a protected class from an employer’s workforce at substantially higher rate than nonmembers, discrimination occurs, regardless of the balance in the employer’s workforce.
- Four-fifths rule
Rate of Hiring
Under this rule, a selection rate for protected classes that is less than four-fifths, or 80 percent, of the rate for the group with the highest rate will generally be regarded as evidence of disparate impact.
Four-Fifths Rule
If an employer’s standards for selecting or promoting employees have a discriminatory effect on job applicants or employees in these protected classes, then a presumption of illegal discrimination arises.
- To avoid liability, the employer must show that its standards have a substantial, demonstrable relationship to realistic qualifications for the join in question.
Discrimination Based on Race, Color, and National Origin
Discrimination against “majority” individuals, such as white males.
Reverse Discrimination
Enacted in 1866 to protect the rights of freed slaves, prohibits discrimination on the basis of race or ethnicity in the formation of enforcement of contracts. Because employment is often a contractual relationship, this can provide an alternative basis for a plaintiff’s action and is potentially advantageous because it does not place a cap on damages.
Potential Section 1981 Claims
Employers cannot treat their employees more or less favorably based on the employees’ religious beliefs or practices and cannot require employees to participate in any religious activity (or forbid them from participating in one).
Discrimination Based on Religion
An employer must “reasonably accomodate” the religious practices of its employees, unless to do so would cause undue hardship to the employer’s business.
- Even if the employee’s belief is not based on the doctrines of a traditionally recognized religion, or a particular denomination.
- Only requirement is that the belief be sincerely held by the employee.
Reasonable Accommodation
If an employee’s religion prohibits hm or her from working on a certain day of the week, for instance, the employer must make a reasonable attempt to accommodate this requirement. The employer is not required to permanently give the employee the required day off, if to do so would cause the employer undue hardship.
Undue Hardship
Employers are prohibited from classifying jobs as male or female and from advertising positions as male or female unless they can prove that the gender of the applicant is essential to the job. Employers cannot have separate male and female senority and cannot refuse to promote employees based on gender.
- Gender must be a determining factor
- Pregnancy discrimination
- Wage discrimination
Discrimination Based on Gender
Generally, to succeed in a suit for gender discrimination, a plaintiff must demonstrate that gender was a determining factor in the employer’s decision to fire or refuse to hire or promote her or him. Typically, this involves looking at all of the surrounding circumstances.
Gender Must be a Determining Factor
Expanded Title VII’s definition of gender discrimination to include discrimination basd on pregnancy. Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in ability to work.
Pregnancy Discrimination- The Pregnancy Discriminatino Act
Requires equal pay for male and female employees doing similar work at the same establishment.
- Court will look at the primary duties of the two jobs- the job content rather than the job description controls. If it is due to any factor other than gender, such as a senority or merit system, then the act is not violated.
Wage Discrimination- Equal Pay Act of 1963
Made discriminatory wages actionable under federal law regardless of when the discrimination began.
- Overturned a previous 180 after employer’s decision requirement
Wage Discrimination- Lilly Ledbetter Fair Pay Act
A termination of employment brought about by making the employee’s working conditions so intolerable that the employee reasonably feels compelled to leave.
Constructive Discharge
An employee must present objective proof of intolerable working conditions. The employee must also show that the employer knew or had reason to know about the conditions yet failed to correct them within a reasonable period. Causation- that the employer’s unlawful discrimination caused the working conditions to be intolerable.
- Demotion- one of the most frequent reasons, particularly when the employee was subjected to humiliation.
Proving Constructive Discharge
The demanding of sexual favors in return for job promotions or other benefits, or language or condcut that is so sexually offensive that it creates a hostile working environment. Can take two forms:
- Quid pro quo
- Hostile-environment harassment
Sexual Harassment
Occurs when sexual favors are demanded in return for job opportunities, promotions, salary increases, and the like.
Quid Pro Quo Sexual Harrassment
Occurs when a pattern of sexually offensive conduct permeates the workplace and is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.
- Evaluated on a case-by-case basis
Hostile-Environment Sexual Harassment
- Must have taken a tangible employment action.
- Ellerth/Faragher affirmative defense.
Harassment by Supervisors
A significant change in employment status or benefits, such as occurs when an employee is fired, refused a promotion, or reassigned to a lesser position.
- Only a supervisor or another person acting with the authority of the employer, can cause this sort of injury.
- Constructive discharge qualifies
Tangible Employment Action
- That the employer has taken reasonable care to prevent and promptly correct any sexually harassing behavior (by establishing effective antiharassment policies and complaint procedures, for example).
- That the plaintiff-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.
- An employer that can prove both will not be liable for a supervisor’s harassment.
Ellerth/Faragher Affirmative Defense
Can take may forms like demotion, firing, or change in the terms, conditions, and benefits of employment.
- In a retaliation claim, an individual asserts that they suffered a harm as a result of making a charge, testifying or participating in a Title VII investigation or proceeding.
- plaintiffs must show that the challenged action was one that would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination.
Retaliation by Employers
When this creates a hostile work environment, and employee may still have a cause of action against the employer.
- Employer is liable only if the employer knew, or should have known, about the harassment and failed to take immediate remedial action.
- May also hold the employer liable for harassment of nonemployees if the employer knew about the harassment and failed to take corrective action.
Harassment by Co-Workers and Nonemployees
Title VII protection extends to individuals who are sexually harassed by members of the same gender. Proving that the harassment in same-gender cases is based on sex can be difficult. It is usually easier to establish a case of same-gender harassment when the harasser is homosexual.
Same-Gender Harassment
Federal law does not prohibit discrimination or harassment based on a person’s sexual orientation, but a growing number of states enacted laws to prohibit this in private employment.
Sexual Orientation Harassment
Racial jokes, ethnic slurs, or other comments contained in e-mail, text or instant messages, or social media or blog posts can become the basis for a claim of hostile-environment harassment or other forms of discrimination. A worker who regularly sees sexually explicit and offensive images on a co-worker’s computer screen or tablet device may claim that they create a hostile working-environment.
- Employers can avoid liability if they take prompt remedial action.
Online Harassment
- Reinstatement
- Back pay
- Rectroavtive promotions
- Damages
- Compensatory damages against a private employer only if the employer acted with malice or reckless indifference to an individual’s rights.
- Title VII limits total amount of compensatory and punitive damages. Cap ranges from $50,000 (100 or fewer employees) to $300,000 (employers for more than 500 employees)
Remedies Under Title VII
Prohibits employment discrimination on the basis of age against individuals forty years of age or older. Also prohibits mandatory retirement for nonmanagerial workers. Permits private causes of action against employers for age discrimination.
- Employer must have 20 or more employees, business activities must have interstate commerce.
- Administered by EEOC
- Includes a provision to extends to federal government employees
- Also protects against retaliation
Discrimination Based on Age- Age Discrimination in Employment Act (ADEA)
A plaintiff must show that the unlawful discrimination was not just a reason but THE reason for the adverse employment action.
- Burden with establishing “but for” causation-but for the plaintiffs age, the adverse action would not have happened.
Procedures Under the ADEA
- A member of the protected age group
- Qualified for the position from which he or she was dicharged.
- Discharged because of age discrimination.
- The burden shifts to the employer to give a legitimate nondiscriminatory reason for the adverse action.
Prima Racie Age Discrimination Case
If the employer offers a legitimate reason for its action, then the plaintiff must show that the stated reason is only a pretext and that the plaintiff’s age was the real reason for the employer’s decision.
Pretext
Generally, the states are immune from lawsuits brought by private individuals in federal court, unless a state consents to the suit. Stems from the 11th Amendment.
- State immunity is not absolute, such as when fundamental rights are at stake, Congress has a right to abrogate (revoke) state immunity through legislation that unequivocally shows Congress’s intent to subject states to private suits.
- Generally state employers are immune from private suits brought by employees under the ADEA, ADA and the FLSA.
- State employers are not immune under the Family and Medical Leave Act
State Employees Not Covered by the ADEA
Prohibits disability-based discrimination in workplaces with fifteen or more workers (with the exception of state government employers, who are generally immune under the 11th Amendment).
- Requires that employers reasonably accomodate the needs of persons with disabilities unless to do so would cause undue hardship.
Discrimination Based on Disability- Americans with Disability Act (ADA)
- The plaintiff has a disability.
- The plaintiff is otherwise qualified for the employment in question.
- The plaintiff was excluded from the employment solely because of the disability.
- Must persue claim through EEOC before filing in court (same procedures for other casues EEOC)
Procedures Under the ADA
- Reinstatement
- Back Pay
- Limited amount of compensatory and punitive damages (for intentional discrimination)
- Certain other forms of relief
- Repeat violators may be ordered to pay fines of up to $100,000.
Remedies for ADA Lawsuits
Any of the Following:
- A physical or mental impairment that substantially limits one or more of an individual’s major life activities.
- A record of such impairment
- Being regarded as having such an impairment
- Medical conditions: alcoholism, AIDS, blindness, cancer, cerebral palsy, diabetes, heart disease, muscular dystrophy, paraplegia, HIV, morbid obesity.
What is a Disability?
Existing when an individual’s weight is two times the normal weight for his or her height.
Morbid Obesity
A separate provision of the ADA prevents employers from taking adverse employment actions based on stereotypes or assumptions about the individuals who associate with people who have disabilities.
Association with Disabled Persons
Congress amended the ADA to strengthen its protections and prohibit employers from considering mitigating measures, such as medications, when determining if an individual has a disability.
- Determined on a case by case basis
Mitigating Measures
ADA provisions also require employers to keep their employees’ medical information confidential. An employee who discovers that an employer has disclosed his or her confidential medical information has a right to sue the employer- even if the employee was not technically disabled.
Disclosure of Confidential Medican Information
- Not required to make these for job applicants with disabiities who are not otherwise qualified for the work.
- Reqiored to make these if the person can perform essential job functions with these.
- May include installing ramps, establishing more flexible working hours, creating or modifying job assignments, and creating or improving training materials and procedures
Reasonable Accommodation
Employers who do not accomodate the needs of persons with disabilities must demonstrate that the accomodations will cause this.
- decided on a case-by-case basis
Undue Hardship
- Employers must modify their job-application process so that thoe with disabilities can compete for jobs with those with no disabilities.
- Employers are restricted in the kinds of questions they may ask on job-application forms and during preemployment interviews.
- Employers cannot require persons with disabilities to submit to preemployment physicals unless they are required of all other applicants.
Job Applications and Preemployment Physical Exams
Drug addiction is a disability under the ADA because it is a substantially limiting impairment. As well as alcoholism.
- Persons using illegal substances are not covered
- Only persons with former drug addictions- those who have completed or are now in a supervised durg-rehabilitation program.
- Employers have a right to prohibit alcohol use in the workplace and can require that employees not be under the influence while working.
- Can refuse to hire or fire an employee if they pose a risk of harm to others and the risk cannot be reduced by reasonably accomodation.
Substance Abuse
Workers with disabilities must be given equal access to any heatlh insurance provided to other employees and cannot be excluded from coverage for preexisting health conditions.
- Cap can be applied, but mut be applied equally to all insured employees and must not discriminate on the basis of disability
Health Insurance Plans
The first line of defense for an employer charged with employment discrimination is to assert that the plaintiff has failed to meet his or her initial burden of proving that discrimination occurred. Once plaintiff succeeds in proving discrimination, the burden shifts to the employer to justify the discriminatory practice.
- Business necessity
- Bona fide occupational qualification
- Senority systems
- After-acquired evidence of employee misconduct
Defenses to Employment Discrimination
A defense to an allegation of employment discrimination in which the employer demonstrates that an employment practice that dicriminates against members of a protected class is related to job performance.
- Defense against disparate impact
Business Necessity
An identifiable characteristic reasonably necessary to the normal operation of a particular business. Such characteristics can include gender, national origin, and religion, but not race.
Bona Fide Occupational Qualification
A system in which those who have worked longest for an employer are first in line for promotions, salary increases, and other benefits, and are last to be laid off if the workforce must be reduced.
Seniority Systems
Evidence that the employer discovered after the employee had filed a lawsuit. Cannot shield an employer entirely from liability for discrimination. It may be used to limit the amount of damages for which the employer is liable.
After-Acquired Evidence of Employee Misconduct
Job-hiring policies that give special consideration to members of protected classes in an effort to overcome present effects of past discrimination.
- Title VII neither requires or prohibits this
- Equal protection issues
- State laws prohibiting these programs
Affirmative Action
Affirmative action programs may violate the equal protection claue of the 14th Amendment of the US consitiution.
- Any federal, state or local affirmative action program that uses racial or ethnic classifications as the basis of making decisions is subject to scrutiny (the highest standard to meet) by courts.
- Today, affirmative action is normally consitutional only if it attempts to remedy pat discrimination and does not make use of quotas or preferences.
- Once goal is acheieved, it must be changed or eliminated.
Equal Protection Issues
The United States Supreme Court recognized that states have the power to enact such bans in 2014.
State Laws Prohibiting Affirmative Action Programs
