Attorney Roger D. Locklear NC Bar Approved General CLE Understanding The Civil Rights Act: How to Handle Employment Discrimination Attorney Roger D. Locklear NC Bar Approved General CLE

Basics of Employment Discrimination Title VII of the Civil Rights Act of 1964 One of the most important laws in this area Amended in 1972, 1978, and 1991 When doing research relevant, remember to look at the 1991 amendments- Offered more protection Offers protection to individuals against employment discrimination The law protects against both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related Prohibits employment agencies, employers, and unions from discrimination against applicants and employees Prohibits discrimination throughout the employment process including hiring, compensation, promotion, training, and termination

Private and public employers Federal, State and Local governments Title VII Coverage Private and public employers Federal, State and Local governments Labor Unions, Employment Agencies, and hiring halls

Key Elements of Title VII Prohibits discrimination in any aspect of employment Allows persons access to equal employment opportunities Provides equal access to training Prohibits sexual harassment Prohibits discrimination based on pregnancy Prohibits discrimination in compensation practices Prohibits retaliation who oppose discrimination Created the EEOC

True or False Title VII of the Civil Rights Act protects employees from discrimination based on race, color, religion, national origin, and sexual orientation. FALSE

Areas Title VII Prohibits Discrimination Race Color National Origin Gender ( Sex Discrimination) Religion

Who is covered? Title VII does NOT apply Title VII DOES apply Less than 15 Employees More than 15 Employees Title VII does NOT apply Title VII DOES apply

Racial Discrimination Discrimination on the basis of an immutable characteristic associated with ones race, such as skin color, hair texture, or certain facial features. Title VII prohibits discrimination on the basis of a condition which predominantly affects one race.

Color Discrimination This type of discrimination occurs when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person. Title VII prohibits color discrimination against ALL persons, including Caucasians. Burden of persuasion remains with the Complainant/Plaintiff at all times. Direct vs. Circumstantial Evidence

National Origin Discrimination National Origin discrimination occurs when a person is treated differently because of their country of origin. Under EEOC guidelines, protection extends to people discriminated against because of: Marriage Membership Attendance/Participation Association

Gender Discrimination Failure to promote someone because of their sex is a clear violation of Title VII Title VII does NOT prohibit discrimination based on: Sexual activity Sexual orientation Martial status

Religious Discrimination This occurs when someone is discriminated against because they engage in religious observances. Basic Rule: must be a religious type of belief and has to be held with strength and conviction with which religious beliefs are normally held. Employers not only have to refrain from discrimination but they must also accommodate their employees religious beliefs where warranted.

True or False The Civil Rights Act applies to ALL organizations regardless of size. FALSE

Exceptions to the General Rule Business Necessity Bona Fide Occupational Qualification (BFOQ) Seniority

Other Areas Protected by Title VII Sexual Harassment Quid Pro Quo: when a job action is dependent on the provision of sexual favors Hostile Work Environment: when the work environment becomes unpleasant and unacceptable based on considerations of sex ( e.g., jokes, languages, unwanted touching) Does NOT require a tangible job detriment Retaliation Two types: Opposition Clause and Participation Clause

Types of Evidence Circumstantial Three-part test set forth in McDonnell Douglas Corp. v. Green (1973) 1) Prima Facie Case 2) Legitimate, nondiscriminatory reasons 3) Pretext

Types of Evidence Continued Direct Evidence Action/statement reflecting discriminatory attitude that correlates with the challenged act. Automatic finding of discrimination against the employer Damages can be mitigated with evidence that the same employment action would have been taken absent discriminatory reasons AKA Mixed Motive

Damages Applicable Injunctions Order directing hire, reinstatement, promotion, payment of higher salary and benefits Back pay Attorney fees and costs Compensatory and punitive damages Declaratory relief Front pay Prejudgment and post judgment interest

Procedural Issue Role of the EEOC Filing Deadlines Deferral Jurisdictions Mediation Doctrine of Exhaustion Continued Violations

True or False The Equal Employment Opportunity Commission is the federal agency that investigates and enforces employment discrimination law. TRUE

Recap Most cases involve circumstantial evidence Complainant ALWAYS retains the burden of proof A tangible adverse action is not necessary to bring claim of retaliation when applicable Direct evidence of discrimination ALWAYS results in a finding against the employer