sex discrimination Flashcards
did the og title vii statute include sex
no
via oncale, what are some cirucmstaces where ‘because of sex’ can be satisfied
By showing that the employer’s conduct was sexual in nature;
By establishing that the company treated one sex with hostility;
Through comparative evidence showing that one sex was treated better than another.
how did congress ensure that pregnant woman are protected under title vii via sex
Amended title vii with pregnancy discrimination act (PDA)
Not a separate statute, just an amendment that is still a title seven claim
what is the PDA
what does it include
The PDA mandates that pregnant women, or women affected by pregnancy-related conditions, be treated the same as other non-pregnant employees who were similarly unable to work. Failure to do so is sex discrimination under Title VII.
The PDA also includes childbirth and related medical conditions in its terms.
Pregnancy and pregnancy related conditions are protected under title vii
what is the key takeaway from ames (the breast feeding case)
Ames alleged that upon her return to work following the birth of her second child she was denied access to a lactation room, informed that she only had two weeks to catch up on her work, and told to “go home to be with your babies” by her department head, who then dictated what Ames should say in her resignation letter.
To prove constructive discharge, an employee must show that the employer deliberately created intolerable working conditions with the intention of forcing her to quit.
The Eighth Circuit rejected Ames’s argument and held that Nationwide made several attempts to accommodate Ames, which shows its intent to maintain its employment relationship with her.
what is the fmla
Under the FMLA, covered and eligible employees are entitled to take twelve weeks of unpaid leave during a twelve month period to care for a newborn child, to address a serious health condition, or to care for a close family member with a serious health condition.
what aare the coverage requirements for fmla via private employers
Private sector employer must employ 50 or more workers for 20 or more weeks of the current or prior calendar year
what are the coverage requirments for fmla via public employers
Public agencies are covered irrespective of the number of employees
what are the coverage requirments for employees under the fmla
Employee must have been employed at a company for a minimum for 12 months before the protections of the FMLA will begin AND
The employee must have worked at least 1,250 hours during the prior 12 month period AND
The employee must be employed at a site where the company maintains 50 or more employees within a 75 mile radius.
what is the fmla notice requirment
Employees must give their employers at least 30 days advance notice of the anticipated leave
Not always possible in emergency situations
If unable to provide 30 day notice for a legitimate reason, the employee must give “notice as soon as possible and practicable under the circumstances.”
what is the fmla anti retaliation provision
Where an employee attempts to avail herself of her right to take leave under the statute, she cannot be retaliated against under the FMLA.
If an employer does retaliate, the employee has a separate cause of action under the statute.
what is the key takeaway from Makowski
She informed the firm she was pregnant and requested, and was granted, leave under the FMLA.
Shortly thereafter, while still on maternity leave, the firm decided to terminate her, stating she did not “fit into [their] culture.”
Under the Family and Medical Leave Act, an employer may not retaliate against an employee who takes medical leave, including maternity leave.
what is the key takeaway from bostock?
Title VII prohibits employment discrimination based on sexual orientation or gender identity (transgender status)
does title vii expressly protect sexual orientation
no but the bostock opinion says that it is
what is the bona fide occupatinoal exception? (BFOQ)
what protected category is covered
Permits intentional discrimination on the basis of sex, national origin, or religion in very limited circumstances
Use of this exception is limited to where the BFOQ is reasonably necessary to the normal operation of the particular business
what is the key takeaway from dothard
Rawlinson applied for a position as a correctional counselor trainee but was refused employment because she failed to meet the minimum 120-pound weight requirement establish by statute.
In defense of the overt statutory discrimination, Dothard relied on the BFOQ defense.
SCOTUS held that the BFOQ defense could permit the hiring of one gender.
Says there is something about being a woman that would prevent them from being an effective prison guard in this context
More difficult to establish respect as female guard
what does the dissent in dothard say
If the prison cant maintain order why is it fair to excluded, punish the P
do we still follow the dothard descsion (ie court reasoning BFOQ of hiring only men ok)
no its been distingished away
what is the key takeawy from johnson controls
Johnson Controls enacted a policy that excluded women who are pregnant or who are capable of bearing children from jobs that involved lead exposure. The policy only allowed women to work in these jobs if their inability to bear children was medically documented
May an employer exclude a fertile female employee from certain jobs because of its concern for the health of the fetus the woman might conceive?
helps refine the BFOQ test
SCOTUS analyzed the BFOQ safety exception defense, finding that the defense is only applicable in narrow circumstances
This exception is to be applied narrowly
The BFOQ is not so broad that it transforms this deep social concern into an essential aspect of a battery making
what is the two part BFOQ test established from johnson controls
1 the discrimination must be job related
2. The necessary discrimination must go to the essence or central mission of what the employer does
what is privacy BFOQ
Privacy interests may justify sex based requirements for certain jobs
The BFOQ applies to certain sensitive areas of employment that interact with an individual’s right to privacy
do courts allow customer preference BFOQ
no
when does the eeoc say that different grooming standards for men and women are ok
where differing standards comply with general societal norms
how can employers choosing attractive workers over unattractive ones become a title vii problem
Some employers may correlate younger workers with being more attractive, which raises potential issues of age discrimination.
