Employment Discrimination Copyright © Jeffrey Pittman

The Heart of an Organization The keys to success for any company – the employees 2 Jeffrey Pittman - Employment Law for Business

Employment Lifecycle An employee is: Hired by the employer Works for the employer Leaves the employer ◦ Voluntarily ◦ Involuntarily - fired 3 Jeffrey Pittman - Employment Law for Business

Wrongful Discharge Being fired from a job is a legally and emotionally significant event An employee who wishes to challenge losing his/her job does so with a wrongful discharge lawsuit Wrongful discharge lawsuits outnumber failure to hire lawsuits approximately 4 to 1, in the Unites States 4 Jeffrey Pittman - Employment Law for Business

The Employment Relationship Employment at will (EAW) EAW is a doctrine which provides that a contract of employment for an indefinite term is terminable at the will of either party Under EAW, an at ‑ will employee may be discharged for good cause, no cause, or even a morally wrong cause 5 Jeffrey Pittman - Employment Law for Business

Ending the Employment Relationship Federal exceptions to employment at will Federal civil rights laws create a major modification to employment at will ◦ Civil rights protections exist against discharge based on age, race, gender, disability, religion, national origin, or color 6 Jeffrey Pittman - Employment Law for Business

Federal Civil Rights Protected Characteristics C olor A ge R ace D isability O rigin R eligion S ex 7 Jeffrey Pittman - Employment Law for Business

Ending the Employment Relationship State exceptions to employment at will State law also limits employment at will by requiring employers to follow any contractual commitments entered into, and by not allowing employee firings that violate fundamental public policy 8 Jeffrey Pittman - Employment Law for Business

Major Federal Civil Rights Legislation The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination 9 Jeffrey Pittman - Employment Law for Business

Major Federal Civil Rights Legislation Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on race, color, religion, sex, or national origin 10 Jeffrey Pittman - Employment Law for Business

Major Federal Civil Rights Legislation The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older 11 Jeffrey Pittman - Employment Law for Business

Major Federal Civil Rights Legislation The Americans with Disabilities Act (ADA) prohibits employment discrimination against qualified individuals with disabilities 12 Jeffrey Pittman - Employment Law for Business

Possible Civil Rights Violations Failure to hire Termination Denial of promotion Undesirable reassignment Awards Leave decisions Compensation Benefits Training Retaliation Referral practices 13 Jeffrey Pittman - Employment Law for Business

The EEOC The U.S. Equal Employment Opportunity Commission (EEOC) is the primary government agency charged with enforcement of federal civil rights laws 14 Jeffrey Pittman - Employment Law for Business

Disparate Treatment The simplest form of illegal discrimination is disparate treatment. A basic question to test for disparate treatment is this: Would the employment decision in question change if the employee’s race, color, religion, national origin, sex, age, or disability was different? 15 Jeffrey Pittman - Employment Law for Business

Prima Facie Discrimination A prima facie case is a presumption that discrimination did take place, if logically possible The presumption of discrimination disappears after the plaintiff has completed the discovery process 16 Jeffrey Pittman - Employment Law for Business

Proving Discrimination Disparate Treatment 17 Evidence at Trial Employee proves, with a preponderance of the evidence, discrimination based on CAR DORS, or Employee loses If Employee is successful, Employer must prove discrimination is a BFOQ, or Employer loses Prima Facie (Shifting the burden of proof) Employee establishes prima facie evidence of discrimination based on CAR DORS, or Employee loses Employer counters with legitimate reasons for the action taken Employee argues Employer’s reasons are a pretext for discrimination After discovery, the case proceeds following “Evidence at Trial” column (unless one party has failed to raise genuine issues of material facts, leading to summary judgment) Jeffrey Pittman - Employment Law for Business

Disparate Impact Also labeled unintentional discrimination, disparate impact violations of the law may come about through inadvertent error on the part of the employer The basic component of disparate impact is proof that some employment practice, policy, or decision affects one class of employee more harshly than it affects another class 18 Jeffrey Pittman - Employment Law for Business

Proving Discrimination Disparate Impact 19 Employee proves a “neutral” employment practice has an adverse impact on a protected class, or Employee loses. If successful, Employer proves employment practice is job-related and a business necessity, or Employer loses. If successful, Employee counters that there is a less restrictive alternate employment practice Jeffrey Pittman - Employment Law for Business

Sexual Harassment Theories Sexual harassment involves unwelcome sexual advances or other harassing conduct directed toward an employee because of that employee’s gender, and Quid Pro Quo A supervisor conditions a term of employment upon agreeing to sexual advances Hostile Environment The harassing conduct is sufficiently severe or pervasive as to 1) create an intimidating or offensive working environment or 2) unreasonably interfere with job performance 20 Jeffrey Pittman - Employment Law for Business

21 Employer Liability for Sexual Harassment Employer liability for gender harassment by co- employees or customers. Employers are liable for gender harassment directed at an employee from co- employees or customers where the employer’s agents or supervisory employees know or should know about the harassment, and fail to take immediate and appropriate corrective action.

Jeffrey Pittman - Employment Law for Business22 Employer Liability for Sexual Harassment Employer liability for gender harassment by supervisory employees - An employer has automatic liability for gender harassment directed at an employee if the harassment comes from a supervisor with immediate (or higher) authority over the victimized employee.

Jeffrey Pittman - Employment Law for Business 23 Affirmative Defense The employer may be released from this automatic liability only if the employer can prove all three elements of the following affirmative defense: ◦ 1. No tangible employment actions were taken against the victimized employee, and ◦ 2. The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and ◦ 3. The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

Affirmative Action Analysis (Re: Plans Based on Race) Government Plans - Equal Protection from the US Constitution requires: ◦ The affirmative action plan must be narrowly tailored to meet the objective, and ◦ There must be a compelling state interest for the plan (usually meaning that there must be past discrimination by the entity involved ) Private Plans - Requirements under the 1964 CRA: ◦ Plan must be based on past discrimination or other persuasive rationale, and ◦ There is no unnecessary “trammeling” of rights, e.g.,  No firing, layoffs, or hiring quota limits for nonminority workers, and  The plan is temporary 24 Jeffrey Pittman - Employment Law for Business