Complaint Process Alleged discriminatory act Internal investigation Internal resolution process (dictate, mediate, or arbitrate a decision External resolution process Complaint filed with EEOC within 180 days Employer notified within 10 days Investigation completed within 120 days (currently over 300 days!) reasonable cause found: attempt to reach agreement with employer; if no agreement, EEOC can file suit reasonable cause NOT found: right to sue letter issued to employee; employee has 90 days to file suit

Major Laws Title VII of Civil Rights Act of 1964, amended in 1972 and 1991- extends 14th Amendment Equal Pay Act of 1963 Age Discrimination in Employment Act (1976, 1978) Vocational Rehabilitation Act of 1975, Americans with Disabilities Act of 1990 Pregnancy Discrimination Act of 1992 Vietnam Era Veterans Readjustment Act (1974)

Does requirement have adverse impact? Does requirement directly refer to member of federally protected class? yes BFOQ? no Probably Illegal no yes Has case law, state law, or local law expanded definition of protected class? yes no no Probably Legal Does requirement have adverse impact? yes yes Probably Illegal Is requirement subterfuge for discrimination? no no Probably Illegal Is requirement job related? yes no Probably Illegal Were alternatives with less adverse impact considered? yes Probably Legal

Does Requirement Directly Refer to a Member of a Federally Protected Class? Sex (Civil Rights Act) Male Female Race (CRA) African American Asian American White Native American National origin (CRA) Color (CRA) Age (over 40; ADEA) Religion (CRA) Disability (ADA) Current Previous Regarded as such Vietnam veteran Pregnant female

Is the Requirement a Bona Fide Occupational Qualification (BFOQ)? Only members of a particular class can perform the job There can be no exceptions According to the courts: Race can never be a BFOQ Religion has been (e.g., Nun, priest) Gender seldom is Customer preference doesn’t matter

Two Types of Discrimination Adverse Impact (or Disparate impact) Disparate Treatment

.33/.40 = .83 > .80 (no adverse impact) Adverse Impact Occurs when the selection rate for one group is less than 80% of the rate for the highest scoring group Male Female Number of applicants 50 30 Number hired 20 10 Selection ratio .40 .33 .33/.40 = .83 > .80 (no adverse impact)

If There is Adverse Impact... 1. Plaintiff proves there is adverse impact 2. Burden of proof shifts to employer who must prove: a. Employment practice is job related or b. Employment practice is exempt from adverse impact or c. There is no other alternative with less adverse impact

Can the Employer Prove that the Requirement is Exempt or Job Related? Exemptions Bona fide seniority system Veteran’s preference rights National security Job Related Types BFOQ Valid testing procedure

Did Employer Look for Reasonable Alternative with Less Adverse Impact? A different test measuring the same construct A different type of test Changes to testing conditions Job redesign

Harassment Claims Quid Pro Quo Hostile Environment

Affirmative Action Strategies Intentional recruitment of minority applicants Removal of supervisor and employee prejudices Identification and removal of employment practices that work against minority employees Preferential hiring and promotion of minorities

Reasons for Affirmative Action Plans Involuntary Government regulation Court order Voluntary Consent decree Desire to be a good citizen community relations customer relations hope that diversity will increase productivity

Does the plan only benefit actual victims of discrimination? Was there a history of discrimination? Plan is illegal Yes Yes Does the plan only benefit actual victims of discrimination? Plan is Legal No What population was used to establish goals? Area Plan is illegal Qualified Work Force Did plan trammel the rights of nonminorities? Yes Plan is illegal No Is there an ending point to the plan? No Plan is illegal Yes Plan is Legal

Privacy Issues Drug testing Office and locker searches Psychological tests Electronic surveillance