class 6 - the law of discrimination pt 1 Flashcards
Prohibiting discrimination in the workplace
The main federal law prohibiting workplace discrimination is Title VII of the federal Civil Rights Act of 1964
It outlaws discrimination based on:
Race
Color
Religion
Gender
Transgender status
Sexual orientation
National origin
Harassment in the workplace is also prohibited as a type of illegal discrimination
Depending on the state you are in, it may also be illegal to discriminate against workers based on other factors such as:
obesity
Marital status
Military service
Federal laws also bar several other kinds of workplace discrimination:
1) Age
The Age Discrimination in Employment Act Prohibits discrimination against older workers
The older workers benefit protection act outlaws discrimination in employee benefit programs based on employee’s age
Protections of both laws apply only to workers who are at least 40 years old
There are some states that protect younger workers such as Minnesota
2) Pregnancy
The Pregnancy Discrimination Act makes it illegal to discriminate against a woman in any aspect of employment because of pregnancy, childbirth, or related medical conditions
3) Citizenship
The Immigration Reform and Control Act prohibits discrimination based on a person’s citizenship status
4) Genetic Information
Federal law prohibits discrimination based on a person’s genetic information, such as a genetic predisposition to a certain disease
5) Pay
The Equal Pay Act outlaws discrimination in wages on the basis of gender
6) Disability
The Americans with DIsabilities Act makes it illegal to discriminate against people because of a disability
7) Union Membership
The National labor Relations Act prohibits discriminating against workers because they do or don’t belong to a labor union
Workplace Discrimination and the Covid-19 Vaccine - Can you fire or take adverse action against employees who refuse to et the COVID-19 vaccination?
The EEOC has stated that employers can institute mandatory workplace vaccination policies as long as they allow for religious exemptions under Title VII of the Civil Rights Act and medical exemptions under the Americans with Disabilities Act (ADA)
Title VII requires employers to reasonably accommodate their workers; sincerely held religious beliefs unless doing so would cause undue hardship
Accommodations include remote work
Personal skepticism does not require an exemption
People with certain medical conditions might be unable to receive the vaccine so they can request a medical exemption in which you can get a physician’s note to support their request
Some employers are offering incentives to their employees to encourage vaccination. If you go down that route, be sure that your employees who can’t get vaccinated for medical or religious reasons can still qualify for the incentive. And don’t make the incentive so large that your employees feel pressured or coerced into getting the vaccine.
Title VII of the Civil Rights Act-
Businesses covered by Title VII
Title VII is enforced the US Equal Employment Opportunity Commission (EEOC)
- Applies to your business if you employ 15 or more people, either full time or part time. Most state laws impose similar prohibition against discrimination and many cover employers with fewer employees
Title VII of the Civil Rights Act-
Discrimination Prohibited
- You can not use race, color, religion, gender, gender identity, sexual orientation or national origin as the basis for decisions on hirings, promotions, dismissals, pay raises, benefits, work assignments, leaves of absence, or any other aspect of the employment relationship.
- Title VII applies to everything from help wanted ads to working conditions, performance reviews and post employment references
1) A business can violate Title VII if its treats people differently because of the characteristics protected by law
EX: A company with more than 50 employees always pass over its AA employees for managerial positions
- Corporate culture, coincidence, whatever it doesn’t matter. The end result is all that matters and if it looks like discrimination it probably is
- If challenged by an employee or the EEOC, employers should be prepared to show that its promotion decisions have been based on objective criteria and that the more qualified applicant has always gotten the promotion
–> There needs to be a convincing business reason
2) Title VII also prohibits ERs practices that seem neutral but have a disproportionate impact on a protected group
- Such a policy is legal only if there’s valid business reason for its existence
- EX: refusing to hire people who don’t meet a minimum strength requirement is permissible if it’s clearly related to the physical demands of the particular job such as felling and hauling huge trees
–> Applying such a requirement to exclude applicants for a job as a cook or receptionist wouldn’t pass legal muster
–> This seem neutral but mainly impacts women
–> There is no legitimate business reason to require a cook or receptionist to meet this requirement
Permissibile DIscrimination
Under Title VII and another anti discrimination laws, you have a very limited right to hire on the basis of gender, religion, or national origin if a job has special requirements that make such discrimination necessary
There are BFOQs-Bonfire Occupational Qualifications
EEOC Enforcement of Title VII
1) If an employee files a complain with the EEOC the EEOC may choose to investigate the claim
2) If this happens, a s taff lawyer or investigator may interview the employee
3) The interview will probably then interview you and some other employees
4) The EEOC will likely try to work out a settlement of the complaint through conciliation: an informal process that resolves any legal violation for the employee who filed the complaint (and any employees who are in a similar situation). Terms of the agreement will be set out in a written statement. The agreement will require the complaining employee to give up the right to sue your business, in exchange for your agreement to take the steps outlined in the document.
5) If the agreement requires you to take some action, such as restoring a demoted employee to an earlier job or holding training sessions to make managers more sensitive to subtle discrimination in the workplace, the EEOC will follow up periodically to make sure you’re complying.
6) If you and the employee who filed the complaint can’t reach an agreement, the EEOC will likely give the employee a right-to-sue letter, allowing the employee to sue your business in federal or state court for violating Title VII. Because it has limited resources, in many cases, the EEOC issues this letter without conducting an investigation, so you may not go through this conciliation process first.
7) The EEOC may file a lawsuit against your business on behalf of the employee if the case feels egregious or groundbreaking
Consider Arbitrating Discrimination Claims
- The Civil Rights Act of 1991 encourages employers to resolve job discrimination disputes through settlement negotiations, mediation and arbitration
- In mediation, a neutral expert helps the ER and EE reaha voluntary resolution of the dispute
In arbitration, a neutral expert makes a binding decision that can be enforced in court
– Arbitration is often a great way to bring a dispute to quick conclusion
– ERs like this because it’s quicker and cheaper than judicial proceedings and arbitration hearings are conducted in private
– Arbitration hearings are conducted in private
– Arbitration allows employers to avoid placing their fate in the hands of a jury, whose member might be more inclined to side with the “little guy” than an arbitrator, who is often a former judge or lawyer
– Employers are often asked when hired to sign agreements that specify that they will submit any claims against the company to arbitration rather than raise them in court
– Over the years, employees have asked courts to set aside mandatory arbitration agreements and allow them to file lawsuits that contain discrimination claims. Generally, however, courts have said that these agreements are valid and binding. And in 2018, the U.S. Supreme Court upheld arbitration agreements that forbade class actions. In other words, employers could require workers to arbitrate discrimination and wage claims individually rather than collectively.
– Not all discrimination and harassment claims are subject to mandatory arbitration clauses
—-> In 2022, Biden signed the ending forced arbitration of sexual assault and sexual harrasment act, which prohibits the enforcement of pre-dispute mandatory arbitration agreements with respect to sexual assault and harassment claims
—-> The law lets victims decide whether to pursue their case ina public court of law or resolve it through private arbitration
Consider Settlement
If an employee files a complaint with a state fair employment agency for violate of state antidiscrimination laws, the investigation procedure will be much the same
Likewise, the state agency might issue a letter authorizing the employee to sue, without first conducting an investigation or going through the conciliation process
Most states have a worksharing agreement with the EEOC, by which a complaint filed with the state agency is considered also filed at the EEOC and vice versa
See an expert
There are a number of remedies that a court can order if it finds workplace discrimination. You may be ordered to:
- Rehire, promote, or reassign the employee to whatever job was lost because of the discrimination
- Compensate the employee for salary and benefits lost because of the discrimination (include wages, pension, contributions, medical benefits, overtime pay, bonuses, vacation pay and participation in your profit sharing plan)
- Pay damages to compensate the employee for emotional suffering, inconvenience and mental anguish and punitive damages to punish your business if you’ve acted maliciously or recklessly
- Change your policies so that similar idscrimination won’t take place in the future OR
- Pay the employee’s legal fees and court costs
Retaliation
- Illegal to retaliate when an EE files a complaint under Title VII or cooperating in an investigation
- An adverse action is retaliation only if it is done because the employee complained. You are free to take adverse actions against an employee for other reasons, even if that employee has complained about discrimination or some other unlawful workplace situation.
For example:
- If the employee performs poorly on the job, you can give the employee a negative performance evaluation.
- If the employee is habitually late for work, you can discipline the employee for tardiness.
- If the employee brings a gun to work, you can fire the employe
Does Resume Fraud Outweigh Discrimination
Some ERs are fighting back in cases of alleged discrimination by arguing that the EE lied on a job application and shou;dn’t have been hired in the first place. If the ER wins this argument, the employee’s lawsuit may be thrown out or the damages the employee could win may be very limited
ER dont always win based on this defense
Make sure to add language in job applications to explain that lying on job applications is terms for termination of employment
Religion
Claims of religious discrimination today tend to be much more subtle and more challenging
An EE might claim that a supervisor is seeking to implore their own beliefs on the EE by pressuring them to attend prayer sessions or Bible study meetings at work
Or an EE may claim that they have been deprived of the right to pray at work or to use a company meeting room to discuss the Koran with other employees
Complicating matters is that the fact that religion, unlike other protected characteristics, is not inherit: it is based on a belief system, which can change or grow over time and which varies from person to person
The law protects your right to discuss your own religious beliefs with an employee, if you’re so inclined, but you can’t persist to the point that the employee feels you’re being hostile, intimidating, or offensive
Might designate places for prayer for employees who want them or give them time do so .. However, it might be better to simply give all employees a few days of personal leave time each year so that religious workers aren’t viewed as receiving special privileges
(SKIT): The Case of Anchor Away
Context:
It is April 3, 2003. Bradford Hicks, a white male, is closing the 5:00 p.m. newscast at KNTV, a station serving the San Jose/ Oakland/ San Francisco market. With him on stage, but off-camera, is director Susan Page
Brad: I think I’ve heard that name before. Isn’t Mr. Holmes black?
And he has . . . what, exactly? He’s only been in journalism for four years, has no experience anchoring five nights, no familiarity with the Bay Area, and no journalism awards. Look, we all know that there is pressure in the entire broadcast community to hire more minorities.
Closer to home, Bob Goldberger once told me that this very station was particularly looking for a Hispanic anchor to appeal to the Hispanic market so that the station could, and I quote, “pin down this Hispanic thing.”
Legal Question:
Did KNTV hire TJ Holmes and keep Linton Johnson to increase diversity and is their decision to ax Bradford Hicks at the same time legal?
Class: Whether Bradford’s contract was not renewed because of his race?
Initial Thought:
Not because of race (possible other factors outside of experience like personality which Bradford lacks anyway)
Final Thought:
Not because of race
Outcome: Court dismissed case.
Objective qualification not relevant to our analysis because this was not the reason he was let go but because of his performance. Rejected subjective criteria alone proves racial discrimination. There was an absence of evidence regarding racial discrimination in this case. Nature of demotion was not discriminatory too.
Discussion:
Subjective factors: Qualitative - personality
aloof
Objective factors: Quantitative - how many awards, years of experience
Many years of experience and tons of awards
He was never fired, but his contract is not being renewed
