Employment Discrimination and Labor Law Flashcards
What paved the way for laws protecting employees in the workplace? What are these laws an exception to? What kind of laws are they?
Union & Civil Rights Movement of 1960s. Major exception to employment at will. Federal laws; many states have similar protections or more for workers in their state. Might apply to employers with few or state employees not covered under a federal law.
What are important federal anti-discrimination laws and protected classes?
1) Title VII of the Civil Rights Act of 1964 (race/national origin/color, religion, sex/gender - pregnancy)
2) Age Discrimination in Employment Act
3) Equal Pay Act (due to gender)
4) Americans with Disabilities Act
5) National Labor Relations Act (protects union activity and protected concerted activity, NLRB)
6) USERRA-Military Protections (DOL)
EEOC protects top 4 (or 5?)
How does enforcement of Title VII of the EEOC work? Anti discrimination?
Before a federal lawsuit can be brought, file must be charged with EEOC. Anti discrimination applies to hiring, firing, promotions, discipline, pay, employees, applicants, undocumented aliens, etc., any “term and condition of employment.
What does Title VII of the Civil Rights Act of 1964 prohibit?
Discrimination in employment on the basis of race, sex/gender (“sex now includes pregnancy), color, religion, national origin. Intentional aka “Disparate treatment” discrimination and unintentional.
What is a Prima Facie Case?
Intentional discrimination under Title VII; intent is hard to prove. Plaintiff must prove:
1) They are a member of a protected class.
2) Were qualified for job.
3) Suffered an adverse employment action.
4) Was replaced/treated differently than someone outside the protected class.
Once plaintiff proves prima facie case, plaintiff has met initial burden in lawsuit. Next, burden is on defendant to prove legitimate non-discriminatory reason for adverse employment action. (Known as employer’s defenses, i.e. employee discharged because of misconduct, wasn’t qualified enough, layoffs). If defendant produces “legitimate non-discriminatory reason,” burden of proof switches back to plaintiff and has to prove reason is pretext. Pretext - Not the true reason.
What are two types of discrimination under Title VII? What do they entail?
1) Intentional AKA "Disparate-Treatment" discrimination - Are you treating somebody disparately/differently because of protected class? Intent is hard to prove. 2) Unintentional "Disparate Impact" Discrimination - Protected class/group adversely affected by employer's practices, procedures or tests although they appear not to be discriminatory. Interviews/testing procedures to choose from an applicant or for promotion may have unintended discriminatory impact on a protected class. Plaintiff must show statistically that practice creates adverse impact: applicant pool - compare employer's workforce to available local market, rate of hiring - employer excludes a class at higher rate than non-protected employees. Plaintiff must show causal link before Employer(?) employer shows it was a justified policy/practice.
Does reverse discrimination exist?
Yes, and it is actionable. Focus of decision was “because of their grade.”
What must be looked for in religious discrimination? What can an employer not do? What must they do with regards to employees’ religious practices?
Prohibits discrimination on basis of religion in hiring, firing, promotions, etc. Cannot ask about religion in interview, require participation in religious activities or prohibit them from participating in one. Must reasonably accommodate religious practices of employees unless it creates undue hardship. Employee must cooperate with employer to reach accommodation but doesn’t have to meet all requests.
What does Title VII prohibit now in discrimination based on gender/sex? What else is prohibited and what does plaintiff have to show to prove discrimination? What is the Equal Pay Act?
Now includes pregnancy and wages. Employers cannot classify a job as male or female or advertise it as such unless they can prove gender is essential to the job. Have to make sure workplace decisions do not adopt notions of what is appropriate for one gender or another and only limit considerations to qualifications. Plaintiff must show “gender” was determining factor in hiring, firing or lack of promotion. EPA - Similar work, skills but unequal pay is unlawful. Seniority system or merit increase is ok.
What is discrimination not solely based on and what is another form?
Differential/disparate treatment; harassment is another form. Not specifically mentioned in Title VII, but Supreme Court has interpreted Title VII’s prohibition of discrimination to include harassment. Not just sexual, can be unlawful due to other protected classes. A mean boss is an “equal opportunity harasser,” not unlawful.
What are the two forms of harassment?
Quid Pro Quo - “Tit for tat.” Demands for sexual favors by a superior from subordinate in exchange for workplace benefit. Employer might be liable no matter what it did to stop it if a supervisory employee did it.
Hostile Work Environment - Workplace permeated with discriminatory intimidation, ridicule and/or insult so pervasive to alter conditions of victim’s employment and create an abusive working environment. (Single isolated comment not sufficient). Conduct in workplace must be offensive to a reasonable person and be severe and pervasive.
When is an employer automatically liable for a supervisor’s harassment? Generally liable for harassment by others?
Supervisor must have taken tangible employment action against employee (significant change in employment status/benefits - fired, refused to promote, constructive discharge applies as well). Generally liable for others if they knew or should have known about treatment and failed to take action and it created a hostile work environment no matter who did it or where: non employees, same gender/sexual orientation, online or out of work harassment.
If employees don’t suffer adverse employment options, what defense does an employer have to a supervisor’s harassment?
1) They took “reasonable care to prevent and correct promptly any sexually harassing behaviors” by establishing and distributing effective harassment policies and procedures.
2) That the employee suing for harassment unreasonably failed to follow these policies and procedures.
An employer who can prove both of these elements will not be liable for a supervisor’s (unless tangible employment action happened) or coworker’s harassment.
Known as Ellerth/Faragher Defense based on two cases: Faragher vs. City of Boca Raton (1998) and Burlington Industries vs. Ellerth (1998).
What is constructive discharge?
When an employee quits and sues for unlawful termination, will win if they can show that employer allowed working conditions so intolerable any reasonable person would feel compelled to quick. Applies to any discrimination: Title VII, age, disability or harassment. To prove, must have objective proof of intolerable working conditions, courts usually require causation by employer. (Employer may assert Ellerth/Faragher defense unless plaintiff quit in reasonable response to a tangible employment action.)
What is included in Title VII with regards to retaliation? What remedies are available under Title VII?
Includes an anti-retaliatory provision. Meant to protect employees who make complaints of issues that Title VII protects (i.e. charges of harassment by supervisor). Companies must be careful not to retaliate. Remedies include reinstatement, back pay, retroactive promotions, damages and punitive damages (attorney fees, etc.).
