Discrim Emplmt/Hardison/Schl Law Discrimination in Employment Presented by: Catherine Hardison, JD, PhD And Charles Wheaton, PhD

Discrim Emplmt/Hardison/Schl Law Civil Rights Act, 1964 Title VII 1972 = School districts included Based on race, color, sex, or national origin cannot Fail, refuse to hire or discharge any individual with respect to compensation, terms or conditions of employment Limit, segregate or classify employees or applicants for employment opportunities or otherwise adversely affect his status as an employee Fail or refuse to refer for employment

Discrim Emplmt/Hardison/Schl Law Civil Rights Act, 1964 Title VII Amended in 1991 (PL ) Allowed for compensatory and punitive damages, back pay, reinstatement for disparate treatment Steps: File complaint with EEOC with 180 days of alleged discrimination OR within 300 days if individual has filed a claim with local or state civil rights agency If don’t meet timeline, then lose standing (meaning?)

Discrim Emplmt/Hardison/Schl Law Civil Rights Act, 1964 Title VII To succeed, Plaintiff must demonstrate employers reason for denying employment is false and actual reason is discrimination. Example: Application made Person is qualified for position Not given fair consideration for position Demonstrate prima facie case, then burden shifts to school district to prove employment decision is not based on a discriminatory practice

Discrim Emplmt/Hardison/Schl Law Civil Rights Act, 1964 Title VII McDonnell Douglas Corp v. Green (1973) & Furnco Construction Corp v. Waters (1978) Plaintiff carries initial burden of establishing a prima facie case (sufficent evidence) of employment discrimination Burden shifts to D to refute prima facie case--demo legitimate nondiscriminatory reason for decision If D is successful, the plaintiff then must prove D’s actions are a mere pretext for discrimination.

Discrim Emplmt/Hardison/Schl Law Civil Rights Act, 1964 Title VII What if…has district violated title VII A district passes over a female who has equal or more impressive credentials than a male for administrative positions? An African American female was not promoted because she lacked interpersonal skills and had an abrasive personality? A female teacher showed discrimination in hiring, but the district showed that she would not have been promoted had she been a man?

Discrim Emplmt/Hardison/Schl Law Sexual Discrimination Also covered under Title IX of Education Amendments Act of 1972 Administered by OCR Also has a provision for sexual distinctions in employment where sex is a bona fide occupational qualification Violations can mean a loss of federal funds for an entire district

Discrim Emplmt/Hardison/Schl Law Rehab Act of 1973 and Amer with Disabilities Act of 1990 ADA + IDEA Protects individuals against discrimination and Assures equal access and opportunity Can you think of a place that is not accessible? How would you make it more accessible?

Discrim Emplmt/Hardison/Schl Law Rehab Act of 504 Section 504 of Rehab Act Prohibits Discrimination against any “otherwise qualified” person who has a disability with respect to: Employment Promotion Training Compensation Fringe Benefits Terms & Conditions of Employment “ No otherwise qualified individual with handicaps… shall solely by reason of his or handicap be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance”

Discrim Emplmt/Hardison/Schl Law ADA and 504 ADA protects students and any person who “has a physical or mental impairment that substantially limits one or more major life activities” Caring for oneself, performing manual tasks, hearing, seeing, speaking, breathing, walking, learning and working Has a record of such impairment Or is regarded by others as having such an impairment

Discrim Emplmt/Hardison/Schl Law ADA and 504 Employers (school districts) must make reasonable accommodations: Existing facilities used by employees must be readily accessible/usable by disabled individuals Accommodations include Job restructuring Part time, modified work schedules Reassignment to a vacant position Acquisition/modification of equipment, devices Appropriate adjustment or modifications of examinations, training materials, or policies Provision of qualified readers/interpretators

Discrim Emplmt/Hardison/Schl Law Qualifications for Employment BUT, Employer can claim undue hardship, meaning... Significant difficulty or expense in light of: Nature and cost of accommodations Overall financial resources of facility/ies needing accommodation, # people employed, effect on expenses or resources Overall financial resources of covered entity Type of operation, composition, structure, and functions of the work force, geographic separateness, administrative, or fiscal relationship of the facility/ies to covered entity Burden of proof is with the employer

Discrim Emplmt/Hardison/Schl Law Scope of Protection: 504 (Rehab) & ADA Complaint can be filed with Dept of Education, federal funds can be terminated, (subject to judicial review ) Can seek relief in court Injunction Monetary damages (if evidence of malicious intent or bad faith)

Discrim Emplmt/Hardison/Schl Law Scope of Protection: 504 (Rehab) & ADA Contagious Diseases 9th Circuit (Chalk v US District Court, Central District of California, 1988) Person with AIDS is “otherwise qualified” under Section 504 of Rehab Act, therefore afforded full protection under the provisions of the Act

Discrim Emplmt/Hardison/Schl Law Scope of Protection: 504 (Rehab) & ADA However, courts will allow: Districts to balance rights of employees with contagious diseases against the risk their presence might create health hazards for those who MUST come in contact with them. Test: expert medical advice, then everyone’s rights are preserved

Discrim Emplmt/Hardison/Schl Law Gender Discrimination Employer’s conduct does not have to be independently egregious for plaintiff to be awarded punitive damages Therefore, egregious conduct not required to pursue punitive damages Why is this important?

Sexual Harassment Title VII and Title IX prohibits Continuum of behaviors Verbal: sexual comments about person’s anatomy or clothing, repeated requests for dates, refusing to accept “no” answers Can even be comments like, babe, sweetheart, honey, sexual jokes or stories Physical: hugging, kissing, stroking, patting, massaging neck and shoulders Discrim Emplmt/Hardison/Schl Law

Sexual Harassment Key is that the behavior is unwanted or unwelcomed (have to tell the person) Quid quo pro (this for that) Non quid pro quo (hostile work environment) District must know or should have known-should have known is this fair? Discrim Emplmt/Hardison/Schl Law

Discrim Emplmt/Hardison/Schl Law Racial Discrimination If cannot prove discriminatory intent, plaintiffs will not succeed in claims of discrimination Disparate treatment: Employer treats some people more unfavorably than others in regards to Employment, job promotion, or employment conditions Based on: Race, color, religion, sex, or national origin

Discrim Emplmt/Hardison/Schl Law Racial Discrimination Disparate Impact Numbers of a similar class affected adversely by A particular employment practice that appears neutral Difference is that disparate impact suits are different because they do not allege OVERT discriminatory action Facially neutral, but employment practices do fall more heavily on one protected group

Discrim Emplmt/Hardison/Schl Law Racial Discrimination School districts will have a hard time proving nondiscriminatory purposes once a plaintiff has shown either intent or impact BEST PRACTICE: Monitor practices for discriminatory intent (easiest) or impact.

Age Discrimination What do you think the age one must reach before he/she can sue for age discrimination? Guesses on whiteboard Discrim Emplmt/Hardison/Schl Law

Discrim Emplmt/Hardison/Schl Law Age Discrimination Act of 1967, Amended in 1978, 1986 (ADEA) Primary effect is on teachers As of 1986, there is no age limit for hiring, dismissal, and other terms and other conditions of employment Early incentive to retire are allowed Can non-renew a teacher, so long as not related to age

Discrim Emplmt/Hardison/Schl Law Age Discrimination Act of 1967, Amended in 1978, 1986 (ADEA) Protects individuals over 40 Burden is on plaintiff to establish a prima facie case of age discrimination Then district must demo a legitimate state interest for its action (age cannot be the sole criterion that motivates a board decision to discriminate against school personnel) Act is very clear, cannot discriminate!

Discrim Emplmt/Hardison/Schl Law Pregnancy & Public School Employment Teachers protected by Pregnancy Discrimination Act of 1978 Amendment to Title VII Protects any form of discrimination based on pregnancy Cleveland Board of Education v. LaFleur (1974) district’s mandatory maternity cut-off dates met no legitimate state interest in maintaining a continuous and orderly instructional program

Discrim Emplmt/Hardison/Schl Law Pregnancy & Public School Employment Cannot assume every pregnant teacher is unable to perform duties beyond a certain date Scope of Act limited to policies that have an impact on or treat medical conditions relating to pregnancy and childbirth less favorably than other disabilities

Discrim Emplmt/Hardison/Schl Law Discrimination in Employment- BEST PRACTICES-Essex Do not, in any fashion, discriminate against employees based on race, color, religion, gender, or national origin If prima facie evidence is presented by an employee, already be prepared to show a compelling educational interest as the motivation (think ahead!) Do not discriminate (retaliate against) an employee who opposes unlawful discriminatory practices or who participates in an investigation

Discrim Emplmt/Hardison/Schl Law Discrimination in Employment- BEST PRACTICES-Essex If aware of discrimination or harassment, take care of the problem, or you will be liable Do not coerce a person to retire due to age, or deny any rights or privileges afforded other employees Remember race discrimination affects all employees Even if employers conduct in an employment discrimination case is not egregious, punitive damages can still be awarded

Discrim Emplmt/Hardison/Schl Law Discrimination in Employment- BEST PRACTICES-Essex Differential employment criteria that appear neutral can still have an illegal disparate impact Employment examinations must have a rational relationship to actual job performance criteria In teacher RIF situations, racial or statistical quotas are not legally defensible

Scenario—Time to Work? Discrim Emplmt/Hardison/Schl Law