exam 2 Flashcards
Civil Rights Act
aimed at discrimination in a number of areas of our society: housing, public accommodation, education, and employment
- foundation of modern fed equal employment opportunity law
Title VII
Civil Rights Act of 1964
Legislation that outlawed discrimination in terms and conditions of employment based on race, color, religion, gender or national origin (RCRGN)
- 15 members = subject to TItle 7
1991 Amendments to Title VII
extend coverage of act to US employee who was hired by US employer to work in another country
part of equal employment opportunity
5 members appointed by the president and confirmed by senate
- 3 from majority party
- 2 from minority party
coverage of Title 7
- prohibit refusal or failure to hire based on discrimination
- applies to employers, labor unions, and employment agencies
- cover state n local gov
- cover act of employer employing citizen abroad
- 15+ = subjected to Title 7
Administration of Title 7
- 5 member commission
- requires employers to post EEOC notice summarizing act’s requirement
- keep record of relevant to determination of lawful or unlawful employment practices
- covered employers must maintain payroll records n other records (promotion,demotion, transfer, n discharge)
disparate treatment
intentional discrimination in terms or conditions of employment due to RCRGN
bona fide occupational qualifications (BFOQ)
exception to civil rights law that allows employer to hire employees of specific RCRGN when business necessity requires it
- ex: only women for women spa
business necessity
safe and efficient performance of business or job that requires employees to be a particular RCRGN
disparate impact
UNINTENTIONAL discriminatory effect of apparently neutral employment criteria or selection devices
fourth fifths rule
protected group’s selection rate should be at least 80% of the majority group’s rate
- <80% = disparate impact
Title 7 Section 703k
deals w disparate impact claims and plaintiff must show that employer uses a particular employment practice that causes disparate impact (negative effects) on protected group
- requires proof that each challenged practice causes the impact, unless decision making process can’t be separated for analysis
uniform guidelines on employee selection procedures
provide methods of demonstrating disparate impact and for validating employee selection criteria
- adopted by EEOC n other federal agencies
content validity
Method show that employment selection device reflects the content of the job which employees are being selected
- basically means the test matches what the job actually involve
- ex: prove certain amount of physical strength is needed
construct validity
Method showing that employment selection device select employees based on traits and characteristic that are required for job
criterion. related validity
Show a link between test result and how well someone actually do the job
- The employment selection device correlates with skills required for the job
- ex: People who score a high on the test does well in the job means test is working
Title VII 703h
protect use of seniority for employment decisions so long as it is not based on discriminatory characteristic
- seniority system is bona fide under 703h if its not used to discriminate, is neutral applies equally, and maintained w out illegal discrimination
S 706(e)(2)
set time limit for challenging a discriminatory seniority system when system is adopted, when plaintiff is affected, or harmed
- seniority system is discriminatory when it starts treating people unfairly for example both Man and Woman works for 10 years but only the man get promotion that is discriminatory against gender
mixed-motive cases
when employer can prove that the same employment decision would’ve been made even w out considering T7 illegal factor
- if proven employers are not responsible
S 704(a)
prohibits retaliation by an employer
- if employee stands up against discrimination employer cannot punish them
elements for plaintiff to prove case of retaliation
- engaged in protected activity
- suffered adverse employment decisions or action
- casual link between protected activity and adverse employment decision
S 704, protected activity
must be related to participation or opposition clause
participation clause
person has taken part in or assisted any investigation, hearing, or proceeding under T7
opposition clause
person has opposed any practice that is prohibited by T7
Affirmative action plans
must serve a compelling government interest and must be narrowly tailored to meet that purpose
T7 section 703(n)
limits challenges to consent decrees
- if you had something to say, and u didn’t say it, you can’t say it later on
T7 section 703(I)
prohibits race norming
race norming
practice of using different cutoff score/adjusting employment related tests based on RCRGN
gender discrimination
T7 prohibits employment discrimination bc of sex or gender
bona fide occupational qualification (BFOQ)
exception that allows employer to hire employees of specific gender, region, or origin when BUSINESS NECESSITY requires it
dress codes n grooming requirement
T7 prohibits imposing diff working conditions or requirement on similarly situated male n female bc of gender
gender under BFOQ
allows employers to hire only specific sex, religion, or origin if that trait is BFOQ
gender plus discrimination
employer places additional requirements on specific gender
transgender discrimination
prior 2019: transgender was protected as “sex” in T7 includes “sexual preference”
in 2019: no protection holding that T7 protect sex but does not reach transgender employees
Equal Pay Act (EPA)
requires that men n women performing substantially equal work to be paid equally
who does equal pay act applies to
- employers engaged in interstate commerce
- employees of enterprise engageed in commerce
- virtually all substantial bus operations
- state n local gov employeees
EPA provisions
plaintiff claiming violation must show employer is paying lower wages for same work but dif gender
what constitute as equal work (EPA)
involves equal:
1. effort
2. skills
3. responsibility
4. working conditions
EPA defenses
pay differentials do not violate the act if they are due to:
1. seniority system
2. merit pay
3. productivity-based
4. a factor other than sex
EPA procedures
- filing suit under EPA does not require the filing of EEOC
- if EEOC filed a suit, it precludes individual suit
- individual suits must be filed within 2 yrs of alleged violations
lilly ledbetter fair pay act
extending time limit for filing suit for pay discrimination cases
- allows filing w EEOc within 180 days when:
a) discriminatory pay policy is adopted
b) employee becomes subject to pay discriminatory pay policy
c) employee is affected by policy
EPA individual plaintiff remedies
- recover the unpaid back wages due
- receive amount equal to back wages as liquidated damages
EPA gov remedies
- injunctions
- back pay w interest
- no liquidated damages in gov lawsuit
- no coverage for damages
gender-based actuarial tables
used to determine premiums n benefits for pensions that require women to pay higher premiums to receive same benefits as same-aged men
- 1983, this is a violation
pregnancy discrimination act
treat pregnant employee the same as any employee suffering a non pregnancy related temporary disability
pregnancy n hazardous working condition
- on-the-job exposure to harsh substances or potentially toxic chemical
- can;t avoid potential health problem by prohibiting women of childbearing age from working in hazardous jobs
- pregnancy is not BFOQ
patient protection n affordable care act
require employers to provide nursing mothers w a secure place to express breast milk
family and medical leave act (FMLA)
allows eligible employees to take up to 12 weeks unpaid leave in any twelve months bc of:
1. birth, adoption, foster
2. need to care for child, spouse, or parent w serious health condition
3. employees own serious health condition makes employee unable to perform
FMLA. coverage
- public sector employers are covered w out regard to # of employees
- private sector employers w 50 or more employees
- employees of covered employers are eligible for leave under act if work for 12 months or 1250 hour
serious health condition defined as:
- illness, injury, condition that requires inpatient hospital care
- last more than 3 days n requires continuing treatment by health care provider
- pregnant
- long term or permanently disabling health condition
- absences for receiving multiple treatments for restorative surgery
- conditions that would result in incapacity if not treated
National Defense Authorization Act
Employers must grant eligible employees who have family on active duty or deployed, an unpaid leave of up to 12 weeks during 12 month period for qualified exigencies
qualified exigencies includes:
- short notice deployment
- military events and related activities
- certain child care n related activities
- making or updating financial or legal arrangements
- attending counseling
- taking 5 days of leave to spend time w member who’s on short-term, temporary rest, and recuperation leave
- attending post-deployment activities
military caregiver leave
FMLA allows up to 26 weeks of unpaid leave to care for child, spouse, parent, or next of kin who is a current member of armed forces n sufferer serious illness or injury
Cali fair employment n housing act law
Employers must provide pregnant employees up to 4 months of unpaid leave and reinstate them to their previous job when they return.
- if position is unavailable due to business necessity, employers must make good faith effort to provide similar job
Garden State Family Leave Act expansion
- more ppl covered (family, in laws, domestic partners, close friends, SV victims)
- applies to 30+ instead of 50 employee
- paid time off 6 –> 12 wks
- intermittent leave 42 –> 56 days
- wage replacement 2/3 –> 85%
- wkly cap 650 –> 860
sexual harassment
unwated sexual behavior that is required as a condition of employment, employment decisions, or such conduct creates a hostile work environment
quid pro quo harassment
employment benefits depend on how employee responds to harassment
hostile environment harassment
Unwelcome behavior or comments that make work uncomfortable or hard, even w out financial harm
- is considered sexual harassment by T7
quid pro quo harassment requirement
plaintiff must show:
1. they belong to protected group
2. subject to unwelcome sexual harassment
3. job benefits were based on accepting harassment
4. some basis to hold the employer liable
reasonable person
A general legal standard used to judge how an average person would react in a given situation.
reasonable victim
more specific standard that considers the perspective of the victim
-“Would a reasonable person in the victim’s position find the behavior hostile or abusive?”
employer liability for sexual harassment
- employers are liable for SH by supervisory, managerial, coworkers, or even nonemployees under certain circumstances
agency relationships
supervisors act on behalf of the employer, employer can be responsible if they allow/ignore harassment
employers responsibility for SH
- liable for quid pro quo harassment by supervisors
- can be held liable for hostile environment harassment
- liable for nonemployees if they have some control n failed
individual liability for SH
employee doing the harassing is not liable for damages but can be ordered by court to stop harassment
- harasser can be personally sued
- public employees can face criminal charges
employer defenses for SH
- conduct must be unwolcome, sexual, or quid pro quo to create hostile environment
- 1 time indicidents or minor comments do not count
- can be liable even if there’s no file complaints, if they knew or should’ve known n didn’t act
SH remedies
- orders to stip cinduct (ex: lost wages/benefits, compensation, punitive damages, legal fees, n reinstatement)
- Sexual harassment is often intentional, so damages are usually available, with limits based on the employer’s size.
- State EEO laws and common-law claims (like emotional distress, battery, assault) can also be used.
- Public sector employees may face additional lawsuits for violating rights under color of law.
Discrimination on basis of religion
harassment cuz of individual religious beliefs, creating a hostile work environment
lemon test
gave gov too much leeway in enforcing law against religious entities
- declared unconstitutional
ministerial exemption under T7
created to keep gov out of church decisions, let religious groups make hiring choices for spiritual roles w out facing discrimination lawsuits
Religion as BFOQ
Religious groups/school/institutions can legally prefer to hire ppl of the same faith
religion reasonable accommondation
employers must reasonably accommodate religious beliefs unless it causes undue hardship
determinant of reasonable accommodation
- size of workforce n # of employees requiring accommodation
- nature of the job that presents a conflict
- cost of accommodation
- administrative requirement of accommodation
- whether employees are affected under the collective bargaining agreement
- what alternatives are available and have been considered by employers
National origin discrimination
T7 prohibits employment discrimination bc of national origin
factor of national origin harassment
- place of origin of employee
- physical, cultural, n linguistic characteristics of an ethnic group
- marriage or association w person of particular ethnic group
- membership in org associated w ethnic groups
- National origin may be a BFOQ
disparate impact of national origin
Avoid using arbitrary employment criteria (height or weight) can unfairly affect certain ethnic groups
english only rules
employer work rules requiring employees to speak English during working hours
English-only rules violate T7
violation if deny employment opportunities bc of foreign accent or inability to communicate well in English, unless job involves public contact n business necessity `
Citizenship T7
protects citizens n noncitizens who reside in or are employed in USA from employment discrimination based on RCRGN
immigration reform and control act (IRCA)
prohibits employment discrimination bc of national origin or citizenship against employees
- immigration act expanded protection to cover seasonal agricultural workers
- enforced by Department of justice through special counsel fo immigration-related unfair employment practices
Filing a complaint procedures under T7
individual filing complaint of employment discrimination must first file w state or local agency authorized to deal w issue
State agency role procedures under T7
Some states and cities have their own equal employment agencies (called “fair employment” or “human rights” commissions).
- more authority than the EEOC in certain cases.
Filing w EEOC under T7
- file w state or local agency
- wait 60 days before going to EEOC
- after, file w EEOC within 300 days of discrimination
EEOC procedures n State agency relations
working share agreements: EEOC n State share complaint processing
Complaint flow: EEOC get complaint first, refer to state, then sends back to EEOC
Violation timing: filing deadline starts when individual becomes aware of violation, not when it affects them
EEOc procedure w continuing violation n hostile environment harassment
file within 180 or 300 days from incident
EEOC complaint handling procedure
- notice to employer withing 10 days of complaint
- EEOC investigates to see if there’s reasonable cause
- if reasonable cause is found, EEOC tries to settle through conciliation
- if settlement fails after 30 days, EEOC may file in federal court
prima facie case
used to establish that if a certain set of fact Is proven, then it is apparent that another fact is established
plaintiff’s burden T7
Plaintiff must prove a prima facie case
disparate treatment claim T7
Plaintiffs must show they were treated unfairly due to RCRGN
defendant’s burden
Defendant must rebut it w a legitimate reason for their actions
plaintiff’s burden of pretext
defendant provides a justification, the plaintiff must show the reason is a pretext (false or misleading)
four-fifths rule
Disparate impact occurs if the selection rate for group w lowest rate is >80% of highest selection rate
defendant response to prima facie case (2 ways)
- chllange the statistics or present alternative evidence
- argue employment practice is job related n necessary
after-acquired evidence
Evidence found after adverse action that employer uses to justify decision
Arbitration of EEO claims
union setting: dispute usually go into arbitration under collective agreements
non union settings; many employers now require arbitration
why employers prefer it: faster, private, n less cost
arbitration clauses in collective agreements
in 14 penn plaza v pyett,court held that employees were required to arbitrate their age discrimination claim
Federal arbitration act
requires federal courts to enforce agreements to arbitrate if they are voluntary n knowing
- individual agreements to arbitrate employment discrimination disputes
back pay
court may award back pay to successful plaintiff
front pay
monetary damages awarded to plaintiff instead of reinstatement or hiring
compensatory n punitive damages
available if plaintiff can demonstrate that private sector defendant acted w malice or reckless indifference to federal rights
limitations on remedies for mixed motive discrimination
If the employer proves it would’ve made the “same decision” anyway, the court may only give a declaration, injunction, and legal fees, not full damages.
Public Employees Under Title VII:
Federal employees must first talk to an EEO counselor in their agency.
If unresolved, they can file a formal complaint with the agency’s EEO office.
Congress & White House employees are covered under the Congressional Accountability Act (1995), with claims handled by the Office of Compliance, starting with counseling and mediation
age discrimination in employment act (ADEA)
prohibits refusal or failure to hire, discharge, or any discrimination in compensation, terms, conditions, or privileges of employment bc of age
- age can be BFOQ
ADEA coverage
- employers involved in industry affecting commerce w 20+ employees
- employers, labor unions, and employment agencies
- US firms that employ American workers in foreign country
- labor union (if its a hiring hall, or 25+)
ADEA provisions
- protects workers 40 n older from age discrimination
- covers hiring, firing, pay n work conditions
- applies to employers, unions, n job agencies
- ban forced retirement, allow voluntary
- age can be BFOQ
- to win, worker must show age as key reason for employer’s decision
ADEA defenses/exemption
- actions pursuant to bona fide seniority system, retirement, pension or benefit system
- for good cause
- “reasonable factor other than age”
- mandatory retirement of certain executive employees at 65
- excused if employer employ US workers in another country
Bona Fide Seniority or Benefit Plan under ADEA
employer can see the terms of bona fide senority or benefit plan, as long as they’re not used to evade ADEA
- should not require or permit involuntary retirement
“reasonable factor other than age”
- productivity pay - workers earn less due to lower productivity
- layoffs - is okay if based on objective criteria
- discipline/termination - employees over 40 can be disciplines or fired for good cause
ADEA section 631(c)
allow mandatory retirement of executive employees who are over 65
section 631(c) qualifications
- must have been in bona fide executive or high policy making position for at least 2 yrs
- upon retirement, is entitled to nonforteitable retirement benefits or at least $44000 annually
ADEA section 623(j)
allows state/local gov to set, by law, retirement ages for firefighters n law enforcement officers
- retirement age must be at least. 65
ADEA early retirement
- allows if voluntary retirement is optional
- older workers benefit protection act: amends ADEA n contained several provisions concerning work force reductions
- employers can offer early retirement incentives:
a) subsidized benefits
b) extra pay until social security
c) severance pay
ADEA waiver rules
allowed if:
1. knowing n voluntary
2. extra compensation is given (over n above what they are entitled to)
ADEA waiver requirements
- in writing n refer to ADEA rights
- must advice employees to consult attorney
- give employees at least 21 days to consider or 45 days for group
- must allow employee to revoke waivers up to 7 days after signing
requirement for group early retirement waiver
- list of eligible employees
- eligibility criteria
- decision deadline
- info on possible consequences for declining
waivers in legal claims
if claim is w EEOC or court, employees must get reasinable time to consider the waiver
ADEA procedures
- handled by EEOC, EEOC n individuals can file lawsuits
- filing a complaint
a) file w EEOC (n state/local if exist)
b) filing both is allowed (unlike T7)
c) file within 180 days if no state.local exists - filing lawsuit
a) wait 60 days after EEOC before suining in fed court
b) EEOC sues, overrides individual or state suits
c) jury trials are allowed
ADEA arbitration
- enforced if voluntarily n knowingly agreed to by employee
- EEOC can still sue
- if collective agreement include ADEA claims, employees must arbitrate, not litigate
ADEA section 15
personnel actions in most fed positions shall be made free from age discrimination
ADEA filing rules for fed employees
- file w EEOc within 180 days
- can sue in fed court 30 days after filing
- only private suits, EEOC can’t sue for fed employees
gov suits under ADEA
- EEOC can sue nonfed employers but must try to settle first
- no time limit - after trying to settle, EEOC can file suit
- court disagree on time limits between limitations (no and yes)
ADEA remedies
- successfull private plaintiffs can recover:
- any back wages owning n legal fees
- equal amount as liquitated damages if employer acted willfully
- injunctive relief
- legal fees n costs - under stuit by EEOC
- injunctions
- back pay
- liquidated damages are not availabel
Americans w disabilities act (ADA)
prohibits discrimination in employment bc of disability
ADA title 1
prohibits discrimination against individuals who are otherwise qualified for employment
ADA amendments act (ADAAA)
expanded ADA to cover a wider range of life activities that was previously outside the ADA
- overturn struct supreme court ruling
ADA coverage
- applies to both private n public sector (15+ employees)
- does not apply to Fed gov, American Indian tribes, bona fide provide membership clubs
ADA provisions
- no discrimination against qualified person w disability
- no retaliation against individual that opposed ADA violations
- no retaliation against individual who filed charge or participate in ADA case
- no threats, coercion, or interference w someone using their ADA rights
qualified individual w a disability
an individual w disability who can perform, w reasonable accommodation, task requirement
- burden of showing their ability to meet physical requirement
- employer may have duty to commence interactive process (failure = violation)
disability
physical or mental impairment that limits 1 or more major life activities
ADAAA + disability
- expanded definition of disability n isted major life activities
- covered if you’re treated unfairly due to real or perceived impairment, even if it doesn’t limit major life activity
- court must not consider assistive devices or aids, other than eyeglasses or contact lenses
Individual not covered by ADA
- transitory n minor impairments (<6 months)
- current illegal drug users
- alcoholic using/under the influence at work
- sexual behaviors (transvestite, exhibitionism, transsexualism)
- sexual orentation (homo, bi..)
Individual protected by ADA
- recovering drug users (not using/ in or done w rehab)
- contagious diseases (HIV, AID)
- those “regarded as” disable
Genetic info nondiscrimination act
prohibits discrimination based on genetic info
applies to:
1. Employers with 15+ employees
2. Employment agencies
3. Labor organizations
4. Joint labor-management committees
ADA + medical exams
ADA limits employer’s ability to test or inquire into disabilities of job applicants
1. can’t ask about existence/nature/severity of disability
2. can ask about individual ability to perform
pre employment medical exams
- allowed after hob is offer but must apply to all applicants
- currently employees are also protected unless test requirement is shown as business necessity
ADA interactive process
used to determine whether an effective n reasonable accommodation is available for employee
- begin when ,edical issue affects work
ADA + reasonable accomondation
- ADA require employers to accommodate known disabilities, unless it cases undue hardship (costly/difficult)
illegal if:
1. not accommodating when required
2. not hiring cuz need for accommodation
undue hardship
accommodation is too difficult or expensive for employers
factors considered
1. nature n cost of accommodation
2. financial resources
3. # of employees
4. overall financial resources
5. business size
- not required to make accommodation if it would imposre “undue hardship”
ADA defenses
- direct threat to safety or health
- job related criteria
- food handler defense
- religious entities
direct threat to safety or health
employers can refuse to hire or accommodate someone if their condition poses a risk to other’s or safety
job related criteria
employers can hire, promote, or refuse ppl based on job related tests or standards
- even ppl w disability, unless accommodation can help
food handler defense
food service can refuse to assign job to someone w infectious diseases, unless accommodation can reduce risk
religious entities
religious org can have preferences to hiring specific religion
Enforce ADA
- EEOC enforces ADA
- follow same rule n remedies as T7
- remedies:
- court orders (injunctions)
- hiring or rehiring (w or w/o back pay)
- attorney’s fees
- Civil right act amended 42 USC section 1981A to allow suits for compensatory n punitive damages against intentional discrimination
rehabilitation act
prohibits discrimination bc of disability by
1. Fed gov employers -section 501
2. Fed gov contractors - section 503
3. recipients of fed financial assistance - section 504
Rehabilitation act provision
- no discrimination against qualified w disabilities
- must prove one can meet job’s physical requirement w or w/o reasonable accommodations
- employers don’t have to hire someone who aren’t capable of the job
Rehabilitation S 501
- Federal gov employers
prohibits discrimination on basis of disability by fed executive agencies, departments, n instrumentalities
Rehabilitation S 501 Enforcement
- Fed employees must 1st report disability discriminato to EEO counselor
- after agency process, can file fed court:
- within 90 days of agency final decision
- 180 days if no decisions - or file EEOC case
- within 90 days of EEOC final action
- after 180 days if no decisions
Rehabilitation S 503
- Fed contractors
prohibits disability discrimination from fed contractors w contracts over $10k - contracts +$50000 must have affirmative action plan to hire qualified individuals w disabilities
- complaints go to OFCCP
Rehabilitation S 504
- fed assisteed program
prohibits discrimination on qualified disability by programs receiving fed financial aid - complaints are handled by agency providing funding
S 504, can sue for:
- equitable relief
- back pay
- monetary damages
- legal fees
- no punitive damages
AIDS + Disability discrimination legislation
- HIV/AID is considered disability under ADA n rehab act
- court/supreme court says asymptomatic HIV qualifies
- employers must accommondate workers w AIDS/HIV if they can do job n no direct threats
- cant fire or discriminate cuz of HIV positive
State Disability Discrimination Laws
- all states ban disability discrimination (rules vary)
- provisions are parallel but some goes beyond ADA protection
- Cali Fair Employment n Housing ACt requires only physical n mental disabilities place “limitation” on major life activity, instead of substantial limitation under ADA
- some states protect against discrimination based on specific conditions
FED Drug abuse n Testing Law
- no fed ban on drug testing
- ADA n Rehab act doesn’t treat drug tests as medical exams, no not regulated
- some fed job requires random/regular testing
- Drug Free Workplace Act requires written drug free policies (fed contractors w $25000+) n have drug free awareness programs for employees
STATE Drug abuse n Testing Law
- various state have drug testing laws
- most have mandatory procedural requirement for employers:
1. written drug testing policy
2. confirmatory test if 1st test = +
3. let employees pay to have their sample retested
4. offer rehab progra
5. only fire if:
a) refuse, fails, or break rehab rules - requires employers to have reasonable suspicions
Private Sector Drug Testing
- maybe required by Drug Free workplace act or testing of certain employee
- fed/state doesn’t prohibit drug testing of private sector, but may be subjected to state procedural requirement
- unionized workplace, employer must bargain in good faith w union before test program
Public Sector Drug Testing
- 4th amendment forbid unreasonable searches or seizures
- show reasonable cause to justify drug test
Drug Testing + NLRB
- Johnson-Bateman (must bargain w unions before testing)
- amoco oil (court stopped employer from starting testing w out arbitration)
- star tribune (applicant testing doesn’t need union approval)
