Employment Discrimination Flashcards
civil rights act of 1964, title 7
eliminates job discrimination based on: race color, religion, sex or national origin
discrimination is prohibited in
recruiting/hiring: includes failure to or improperly referring by employment agencies. employers can affirmatively hire on discriminatory basis
- compensation
- terms conditions or privileges of employment (promotion). ex. better bonuses for whites, allowing racial insults, etc
- discharge: can’t fire people because of different race
- retaliation also prohibited in response to complaints made under the act
discrimination based on religion, sex, or national origin
(not race or color) is permitted if bona fide occupational qualification (bfoq): if I run a catholic church it’s okay to only hire catholic
enforced by equal employment opportunity commission (EEOC)
- EEOC can file suit on behalf of employee claiming violation
- must exhaust efforts to settle claim first
- remedies include reinstatement with back pay and injuctions
- does not preempt state fair employment laws; EEOC must wait 60 days after state has started investigating before proceeding
private actions
individuals must first file charges with EEOC within 180 days after notice of the unlawful practice (or with state agency and then EEOC)
- plaintiff must prove either disparate treatment (employer intentionally discriminated)- defense: bfoq
- or plaintiff can prove disparate impact
disparate impact
a. employers practices/policies have a disparate impact on a protected group- statistically show it has adverse impacts
b. defense: must prove practice/policy is job related and based on business necessity
c. plaintiff can overcome defense by showing another practice would serve the same purpose without discriminatory effects- age of home allegation
other private retaliations
- plaintiff can also claim retaliation (taking adverse employment action, eg, firing transferring)
- showing a statistically imbalanced workforce is not enough in itself to establish discrimination
- plaintiffs can get up to 300,000 in compensatory (including pain/suffering) and punitive damages (back pay)
a. Punitives: for “malice or with reckless or callous indifference to the federally protected rights of others”
b. punitives are only for intentional discrimination
religious discrimination
religious organizations can discriminate on basis of religion but not on other bases (female)
2. non religious employers cannot discriminate on basis of religion and must make reasonable accomodations unless would cause undue hardship
sex discrimination
statutes passed to protect women are illegal (law prohibiting employing women for given period after childbirth)
gender could be bfoq, but must have factual basis, narrowly interpreted
example: telephone company could not prove that most women could not safely perform heavy lifting required for position
not promoting women to overseas positions because foreign clients were reluctant to deal with them
sexual harassment
quid pro quo actions (benefits/threats for sexual behaviors) and hostile work environment create discriminatory condition of employment
a. hostile work environment includes offensive comments, touching, visual displays etc. if reasonable perceived as hostile and abusive, regardless of economic or other injury
b. defense: employer showed reasonable care to prevent and promptly correct harassing behavior; plaintiff did not take advantage or corrective plan
pregnancy discrimination
no discriminating against women who become pregnant or give birth
a. if have health plan, must cover pregnancy and related conditions like other conditions
b. employer cannot force pregnant woman to stop working before birth if she is capable of doing work, or keep her from returning to work after birth
c. insurance does not need to cover for abortion unless mother’s life is endangered, and she must still receive benefits available to other employees (sick leave)
d. cannot discriminate against women or men (must give benefits to male employee’s wives)
equal pay act
under both EPA and title 7, employers cannot discriminate on basis of sex in paying wages for equal (not identical) work
a. work is equal if performed under similar conditions and requires similar skill, effort and responsibility
b. discrimination based on non-sex reasons is okay (seniority)
c. unequal pay is also evidence of intentional sex discrimination even if work is not substantially equal
Lilly ledbetter and goodyear
worked for goodyear for 20 years, discovered that her pay had been as much as 40% less than her male counterparts during the entire period. she filed a charge with the EEOC and brought suit for back pay over the entire 20 years. jury awarded her compensatory and punitive damages. Divided supreme court held that her case was barred by the statute of limitations, holding that the discrimination occured with the first paycheck, not the most recent. congress passed the lilly ledbetter fair pay act, which would allow a claim for back pay if claim is filed within 180 days of any discriminatory paycheck, regardless of date of initial violation
sexual orientation discrimination
not prohibited by title 7
a. legislation is pending to amend title 7 to include sexual orientation
b. prohibited by numerous states and municipal laws
employment practices subject to challenge
- questionnaires, interviews, testing and educational requirements: make sure all questions and requirements are job related and necessary for the business
a. consider disparate impact of questions/requirements
b. race norming (setting different cut off test scores for different protected groups is prohibited - height and weight requirements: must be related to job performance
- appearance requirements: mixed rulings from courts- disney no facial hair
affirmative action
phrase coined by jfk in an executive order requiring businesses contracting with the federal government to agree to actively recruit minorities who are underrepresented in the workforce
a. affirmative action programs, whether federal or private, can give rise to reverse discrimination claims
b. to be constitutional, affirmative action plans cannot have set quotas, but only reasonable, temporary target goals to correct historic imbalances
c. plans are subject to strict scrutiny and must be supported by a compelling interest
d. california passed proposition 209 in 1996 outlawing state affirmative action (still allowed by private entities)
seniority systems
give priority to workers who have worked longest for an employer, okay if a good faith system, even if adversely affects minorities as long as not intentional
civil rights act of 1866, section 1981
everyone has same right to make and enforce contracts, regardless of race
a. allows individuals to file lawsuits without first filing with the EEOC (no 180 day time limit)
b. allows for unlimited damages (no caps on compensatory or punitive damages)
c. applies only to race, but concept of race can be broad - no religion, gender etc
d. applies generally to same discriminatory acts as title 7 (hiring, firing, hostile work environment, retaliation)
age discrimination in employment act (adea)
a. prohibits employment discrimination against employees 40 and older
1. prohibits mandatory retirement except for high level executive aged more than 65 who will receive more than 44000 a year in retirement benefits
2. applies to employers with more than 20 employees
for adea, must prove either
disparate treatment or disparate impact
- employer can defend by arguing bfoq, but hard to justify
- do not need to show business necessity for policy with disparate impact, only that there was a reasonable factor other than age
remedies include
reinstatement, lost wages, some courts allow damages for emotional distress
- willful violations result in double damages
- cannot recover damages from a state entity
americans with disabilities act
prohibits employment discrimination against employees or applicants based on:
- having a disability
- having had a disability in the past
- being regarded as having a disability
disability
any physical or mental impairment that substantially limits one or more of an individuals major life activities
- determination of disability is made without regard to mitigating measures (medication, limbs)
- impairments that last 6 months or less are not covered, but episodic or impairments in remission are covered
- disorders resulting from current substance abuse are not covered, but recovered addicts are protected
prohibits discrimination aginst:
hiring the qualified disabled in hiring, promotion, discharge, pay, training or other conditions or employment
- applies to employers of 15 or more employees
- protects qualified disabled employees- can perform job function with or without reasonable accomodation (blind person wants to be drive, no)
reasonable accomodation
- employer must make the job/work environment fit the employees needs (make physical facility accessible, modify equipment, etc)
- employer can claim accommodation is not reasonable or would cause undue hardship
businesses offering services
or facilities to the public must also make accommodations for disabled customers/members of the public
ADA remedies
similar to title seven, hiring/reinstatement, back pay, injunctive relief, compensatory and punitive damages (for intentional discrimination)
genetic information nondiscrimination act
employers cannot discriminate against applicants/employees based on their genetic information (own and family’s)
a. applies to all employers subject to title 7
b. restricted from requesting, requiring or purchasing employee’s genetic information
c. has implications for health and insurance benefits
health insurance portability and accountability act
HIPAA; prohibits discrimination in group health plans based on employee’s health status, medical condition or history, genetic information or disability
other laws
a. other federal agencies prohibit discrimination in their specific fields (FHA)
b. state laws can impose additional prohibitations (discrimination on basis of weight)
c. discrimination plaintiffs may also allege other torts eligible for unlimited compensatory and punitive damages
d. arbitration clauses in employment contracts may be enforced, but should not unfairly benefit the employer
