Chapter 15 Employment Discrimination
Chapter 14
Discrimination in the Workplace
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INTRODUCTION
The most important federal anti-discrimination laws are:
Title VII of the Civil Rights Act of 1964.
The Age Discrimination in Employment Act.
The Equal Pay Act.
The Americans with Disabilities Act.
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Title VII of the
Civil Rights Act of 1964
Title VII prohibits employment discrimination based on race, color, national origin, religion, or gender. Gender is synonymous with “Sex” and “sex” now encompasses pregnancy, childbirth and medical conditions.
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Title VII
To be covered an employer must have 15 or more employees.
State and local government agencies with 15 or more employees.
Federal government agencies automatically covered.
Enforcement of Title VII by EEOC
Employees must file a claim with the EEOC. The EEOC may sue the employer on the employee’s behalf; if not, the employee may sue the employer directly.
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Title VII Procedure
Employee files a claim with the EEOC
EEOC’s initial action:
Encourage parties to mediate
Gather information
EEOC’s next step:
Choose to
ing a claim against employer, o
Issue a Notice-of-Right-to-Sue
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Intentional vs. Unintentional Discrimination
Title VII prohibits both intentional and unintentional discrimination.
Intentional: Disparate-treatment discrimination is a form of employment discrimination that results when an employer intentionally discriminates against employees who are members of protected classes.
Unintentional: Disparate-impact discrimination occurs when an employer’s practice, such as hiring only persons with a certain level of education, has the effect of discriminating against a class of persons protected by Title VII.
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Intentional Discrimination
Disparate Treatment
Step One: Employee makes a prima facie case.
Step Two: Employer shows legitimate reason for its action.
Step Three: Burden back to employee to show employer reason a pretext.
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Unintentional Discrimination
Disparate Impact
Discrimination against an entire protected class
Evidence of disparate impact:
Pool of applicants in labor market (see, for example, Case Illustration at page 434)
Four-fifths rule
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Protected Classes
Race/Colo
Includes protection for characteristics related to race, such as skin color, hair texture, or certain facial features
National Origin
Includes birthplace, ancestry, culture, or accent
Religion
Includes sincerely held religious beliefs
Must reasonably accommodate
Gende
Includes gender stereotyping
Includes pregnancy
Pay differential based on gender prohibited (Equal Pay Act of 1963)
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Equal Pay Act of 1963
The act prohibits gender-based discrimination in the wages paid for equal work on jobs when their performance requires equal skill, effort, and responsibility under similar conditions.
A wage differential for equal work is justified if it is shown to be because of:
seniority
merit
a system that pays according to quality or quantity of production
any factor other than gende
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Discrimination Based on Race, Color, and National Origin
If a company’s standards or policies for selecting or promoting employees have the effect of intentionally/negligently discriminating against employees or job applicants on the basis of race, color, or national origin, they are illegal, unless (except for race) they have a substantial, demonstrable relationship to realistic qualifications for the job in question.
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Discrimination
Based on Religion
An employer must “reasonably accommodate” the religious practices of its employees, unless to do so would cause undue hardship to the employer's business.
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Discrimination
Based on Gende
Employers are prohibited from classifying jobs as male or female and from advertising in help-wanted columns that are designated male or female unless the employer can prove that the gender of the applicant is essential to the job.
Plaintiff must show gender was determining factor in hiring, firing or lack of promotion.
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SEXUAL HARASSMENT
Sexual Harassment can take 2 forms:
Quid pro quo (“something in exchange for something else”)- Employer seeks sexual favors as a condition of employment, promotion, or receipt of other benefits.
Hostile Environment- this occurs when an employee is subjected to sexual comments, jokes, or physical contact perceived to be offensive. Workplace filled with intimidation, ridicule, or insult that interferes with the ability of the employee to do his or her job.
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Quid Pro Quo Harassment
Quid Pro Quo harassment involves the demands for sexual favors by supervisors from a subordinate, in exchange for some workplace benefit.
Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees.
Must be a “tangible employment action” for liability.
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Hostile-Environment Harassment
Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment.
The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.
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Hostile-Environment Harassment
Courts look at:
Whether conduct is physically or psychologically threatening; and
Whether the conduct is unreasonable and interferes with employee’s work performance.
A one-time incident may be sufficient if it was severe enough and involved a supervisor.
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HARASSMENT BY SUPERVISORS
In a quid pro quo case, the employer is strictly liable. In a hostile environment case, the employer may be liable only if it knew or should have known and failed to act.
Also a tangible employment action must have been taken against the employee
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Employers Defense
Employers have an affirmative defense against liability for their supervisors’ harassment of employees:
If they show they have taken “reasonable care to prevent and co
ect promptly any sexually harassing behavior” (by policies and complaint procedures).
The employee suing for harassment failed to follow these policies and procedures.
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Retaliation by Employe
Charges of harassment by supervisors sometimes result in retaliation against the complaining employee. Title VII includes an “anti retaliatory” provision.
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HARASSMENT BY CO-WORKERS AND NON-EMPLOYEES
Employer generally liable only if employer knew or should have known and failed to take action.
Employee notice to supervisor is notice to Employer under agency law.
Employers may also be liable for harassment by non-employees.
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Same-Gender Harassment
In 1998, the U.S. Supreme Court ruled that same sex harassment was actionable under Title VII ( see Oncale v. Sundowner Offshore Services, Inc.).
Can be difficult to show the harassment is “based on sex.”
Title VII does not prohibit discrimination based on “sexual orientation” although many companies’ policies do address that.
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Online Harassment
Employees can create hostile work environment using chat, email to spread racial and sexual jokes and slurs.
Employers can avoid liability with prompt remedial action.
Employees may be discharged for using company computers to distribute offensive material to coworkers.
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Remedies under Title VII
If a plaintiff proves that unlawful discrimination occu
ed he or she may be awarded:
einstatement
ack pay
etroactive promotions
Damages may be awarded for intentional discrimination.
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Discrimination
Based on Age
The Age Discrimination in Employment Act (ADEA) of 1967 prohibits employment discrimination on the basis of age against individuals forty years (40) of age or older.
Procedures for
inging a case under the ADEA are similar to those for
inging a case under Title VII.
Covers employers with more than 20 employees.
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ADEA
If a plaintiff can establish that he or she
Was a member of the protected age group,
Was qualified for the position from which he or she was discharged, and
Was discharged under the circumstances that give rise to an inference of discrimination.
The Plaintiff has established a prima facie case of unlawful age discrimination. Like under Title VII the burden then shifts to the employer who must give a legitimate reason for the discrimination.
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Discrimination Based
on a Disability
Americans with Disabilities Act of 1990 (ADA)
Covers employers with 15 or more employees.
Procedurally, to make a claim follow the same procedure as that used for Title VII claims.
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Discrimination
Based on Disability
The ADA of 1990 prohibits employment discrimination against persons with disabilities who are otherwise qualified to perform the essential functions of the jobs for which they apply.
Procedures and remedies
To prevail on a claim under the ADA, the plaintiff must show that he or she has a disability, is otherwise qualified for the employment in question, and was excluded from the employment solely because of the disability.
Procedures under the ADA are similar to those required in Title VII cases; remedies are also similar to those under Title VII.
Plaintiff must first exhaust administrative relief with EEOC.
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What is a Disability?
The ADA defines the term disability as a physical or mental impairment that substantially limits one or more major life activities; a record of such impairment; or being regarded as having such an impairment.
Determination is decided on a case-by-case basis.
“Co
ectible Conditions” are not necessarily disabilities.
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GINA
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from using genetic information in making employment-related decisions.
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Reasonable Accommodation
Employers are required to reasonably accommodate the needs of persons with disabilities.
Reasonable accommodations may include altering job-application procedures, modifying the physical work environment, and permitting more flexible work schedules.
Employers are not required to accommodate the needs of all workers with disabilities.
For example, employers need not accommodate workers who pose a definite threat to health and safety in the workplace or those who are not otherwise qualified for their jobs.
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Association Discrimination
ADA contains provision that protects individuals who have an association with someone else who has a disability.
Plaintiff must show she: (1) was qualified for the job, (2) subject to adverse employment action, and (3) was known by employer to have a associate or relative with a disability.
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Defenses To
Employment Discrimination
If a plaintiff proves that employment discrimination occu
ed, employers may avoid liability by successfully asserting certain defenses.
Employers may assert that the discrimination was required
After acquired evidence
to meet a bona fide occupational qualification
to maintain a legitimate seniority system
Evidence of prior employee misconduct acquired after the employee has been fired is not a full defense to discrimination but it can help to limit the amount of damages.
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Defenses to Employment Discrimination
Bona Fide Occupational Qualification (BFOQ)
Qualification must be “reasonably necessary to the normal operation of that particular business or enterprise.”
Seniority or Merit System
Permissible as long as purpose is not to discriminate.
After-Acquired Evidence
Not a complete defense but may limit remedies.
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Remedies for Discrimination
Remedies may include:
Back pay
Reinstatement
Wage adjustments
Retroactive promotions
Attorney fees
Punitive damages possible for actual malice or reckless disregard of an employee’s rights.
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Affirmative Action
Affirmative action programs attempt to “make up” for past patterns of discrimination by giving members of protected classes preferential treatment in hiring or promotion.
Increasingly, such programs are being strictly scrutinized by the courts.
Implemented to remedy past patterns of discrimination.
Applicable to government hiring and private employers seeking government contracts.
Affirmative action polices also adopted by some educational institutions.
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The Legal and Ethical Environment of Business
SPRING 2020
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