Employment law for human resource practice, 5e David Walsh Employment law for human resource practice, 5e © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Overview of Employment Discrimination Chapter 3 © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Chapter Outline The Continuing Reality of Employment Discrimination The Concept of Employment Discrimination Types of Discrimination Disparate Treatment: A Closer Look Adverse Impact: A Closer Look Retaliation: A Closer Look © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

The Continuing Reality of Employment Discrimination Progress has been made against discrimination since the passage of The Civil Rights Act of 1964. But rooting out subtle discrimination may be more difficult than confronting the overt discrimination of the past Discrimination is inherently difficult to prove. Glass Ceiling: invisible, artificial and attitudinal barriers in the workplace © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

The Concept of Employment Discrimination (1 of 2) Major Anti-discrimination Laws Title VII of Civil Rights Act of 1964 Equal Pay Act Age Discrimination in Employment Act Rehabilitation Act Pregnancy Discrimination Act Americans with Disabilities Act © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

The Concept of Employment Discrimination Employment discrimination defined: A limitation or denial of employment opportunity based on protected class characteristics of a person In essence, “adverse employment actions” Liability arises not from prejudice alone, but from its effects on employment opportunities Unfair treatment must be based on or related to the protected class characteristics of people © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Concept of Employment Discrimination Protected Classes (1 of 4) Federal Antidiscrimination Statutes: Race, Color Title VII, Civil Rights Act, 42 U.S.C. §1981 Sex Title VII, Civil Rights Act, Equal Pay Act National Origin Title VII, Civil Rights Act, 42 U.S.C. §1981, Immigration Reform and Control Act Religion Title VII, Civil Rights Act © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Concept of Employment Discrimination Protected Classes (2 of 4) Federal Antidiscrimination Statutes: Citizenship (citizens or legal aliens) Immigration Reform and Control Act Age - 40 and over Age Discrimination in Employment Act Disability “Qualified individual with a disability” Americans with Disabilities Act; The Rehabilitation Act © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Concept of Employment Discrimination Protected Classes (3 of 4) Federal Antidiscrimination Statutes: Pregnancy (pregnancy, childbirth, related) Pregnancy Discrimination Act Military Service Uniformed Services Employment & Reemployment Rights Act Genetic information Genetic Information Nondiscrimination Act © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Concept of Employment Discrimination Protected Classes (3 of 4) Some protected classes are recognized under state or city law, but not federal law: Marital status Sexual orientation Gender identity Tobacco/alcohol use Others © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Types of Discrimination Four types of discrimination: Disparate treatment Requires discriminatory intent Adverse (Disparate) impact Facially neutral policy has discriminatory effects Failure to reasonably accommodate Applies to religion, disability only (See Chapter 10) Retaliation To punish based on employee’s exercise of his legal rights © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Types of Discrimination Practical Advice… Don’t make employment decisions based on the protected class characteristics of employees Strive to be fair and to treat all situations alike, regardless of the protected class characteristics of the employees involved Closely scrutinize factors used in making employment decisions for their potential to exclude protected class groups Be flexible in accommodating the needs of employees who are disabled and employees whose religious practices conflict with workplace requirements Exercise care with employees who have filed charges © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Disparate Treatment: A Closer Look Disparate Treatment: A Closer Look Types of Disparate Treatment Cases (1 of 2) Facially Discriminatory Policy or Practice (intentional) Defense: bona fide occupational qualification (BFOQ) Reverse Discrimination A misnomer; results when white male believes hiring of woman or person or color constituted discrimination to him Pretext Employer’s stated reason for decision for decision is not the real one, employee believes © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Disparate Treatment: A Closer Look Disparate Treatment: A Closer Look Types of Disparate Treatment Cases (2 of 2) Mixed Motives Both legal and illegal motives; Employer can limit damages if it can prove decision would have been made anyway Mixed motives analysis not available for disability, retaliation or age discrimination In those cases, employee must prove that discrimination was the “but-for” cause Pattern or Practice Systematic, affecting many employees; statistics Harassment © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Disparate Treatment: A Closer Look Disparate Treatment: A Closer Look Pretext-Indirect Method of Analyzing (1 of 2) 1) Plaintiff must prove a prima facie case: Plaintiff’s relevant protected class characteristic Applied for the employment opportunity The employment opportunity was available Plaintiff was qualified for it Plaintiff was denied the opportunity Defendant-Employer continued to interview, or hired one with contrasting protected class characteristics © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Disparate Treatment: A Closer Look Disparate Treatment: A Closer Look Pretext-Indirect Method of Analyzing (2 of 2) 2) If Plaintiff proves a prima facie case, then Defendant must produce evidence of lawful motive for the employment decision. 3) If Defendant produces such evidence, Plaintiff may rebut by: Providing evidence that casts doubt on Defendant’s claimed motive, and/or Providing other evidence supporting the claim of discriminatory motive © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Disparate Treatment: A Closer Look Direct Method of Analyzing (1 of 2) Direct evidence (the “smoking gun”) may also be used to prove disparate treatment Circumstantial evidence hints at the possibility of discrimination, but is not sufficient by itself to prove it Comparative evidence shows the employer to have treated the plaintiff worse than another employee under the same circumstances © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Disparate Treatment: A Closer Look Direct Method of Analyzing (2 of 2) Subordinate Bias (Cat’s Paw) theory may apply when there is evidence of a discriminatory motive by a supervisor or other manager, but not on the part of the official who makes the decision The discriminatory motive of a lower level employee can result in liability even though the decision-maker is someone else Practical advice: Carefully select & train supervisors & closely review disciplinary actions © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Adverse Impact: A Closer Look Elements of a Claim (1 of 2) 1) Plaintiff must prove a prima facie case: A neutral requirement disproportionately limits the employment opportunities of a protected class of which plaintiff is a member. The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Adverse Impact: A Closer Look Elements of a Claim (2 of 2) 2) If Plaintiff proves a prima facie case, then Defendant must prove that the challenged requirement is job related and consistent with business necessity. In age discrimination cases, the employer must show that the requirement is a reasonable factor other than age. 3) If Defendant successfully defends the requirement, Plaintiff may still prevail by showing that a feasible, less discriminatory, practice exists, but the employer refuses to adopt it. (Does not apply in age discrimination cases.) © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Analyzing Adverse Impact Cases (1 of 2) Sometimes a combination of factors combine to adversely impact employment decisions These sometimes have had adverse impact: A variety of written employment tests Height and weight requirements Language requirements Physical strength tests Military service, type of discharge Limitation of employment based on arrests & convictions Educational attainment requirements © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Analyzing Adverse Impact Cases (2 of 2) If plaintiff proves a prima facie case, employer must show that the requirement is job-related and consistent with business necessity Age-based cases handled differently Employer has burden of showing that the challenged requirement is a reasonable factor other than age A more lenient standard © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Retaliation: A Closer Look Retaliation focuses on the employee’s protected activity rather than on the employee’s protected class characteristics Two broad classes of protected activity: Participation Involvement in the enforcement of an antidiscrimination law Opposition Resisting or speaking out against discrimination apart from participating in formal enforcement procedures © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Retaliation: A Closer Look Elements of a Claim (1 of 2) 1) Plaintiff must prove a prima facie case: Plaintiff engaged in protected activity or opposed discrimination Plaintiff suffered a materially adverse (employment) action There is a causal link between the activity and the adverse employment action 2) If Plaintiff proves a prima facie case, then Defendant must prove a lawful, non- retaliatory motive for the decision. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Retaliation: A Closer Look Elements of a Claim (2 of 2) 3) If Defendant successfully defends the decision, Plaintiff may rebut the claims by: Providing evidence that sheds doubt on the credibility of Defendant’s stated motive; and/or Providing other evidence that supports the claim that retaliation is the most likely explanation for the adverse action. Also prohibited: employer’s adverse action against someone close to the employee, a third- party retaliation © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

What Would You Do? You are the VP of Human Resources; the Director of Human Resources reports to you. You have received a complaint from a Muslim employee in the IT department, who says that his manager has written him up for “trumped-up” charges in an effort to build a case for terminating him because of his religion, and that the Director of HR (who reports to you) is cooperating with the manager. What would you do? © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

Next: Chapter 4 – Recruitment How can recruiting, applications and interviewing get your firm into trouble? What questions should you NOT ask in a job interview? The answers to these questions and more are next. © 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.