 The most important federal anti-discrimination laws are:  Title VII of the Civil Rights Act of  The Age Discrimination in Employment Act.  The Equal Pay Act.  The Americans with Disabilities Act. © 2012 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. 2

 Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy.  Applies to employers involved with interstate commerce with 15 or more employees. © 2012 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. 3

 In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices.  EEOC: monitors compliance with Title VII. © 2012 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. 4

 “Disparate-Treatment” Discrimination. Applicant must prove:  Is a member of a protected class;  Applied, qualified, rejected for job;  Employer continued to seek applicants.  Burden then shifts to employer who must articulate a legal reason for not hiring. © 2012 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. 5

 “Disparate Impact” Discrimination:  Occurs when a protected group of people is adversely affected by an employer’s practices, procedures, or tests, even though they do not appear to be discriminatory.  © 2012 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. 6

 Disparate Impact Discrimination (cont’d).  Pool of Applicants Test: plaintiff shows percentage of the protected class in employer’s workforce does not reflect percentage in local labor market.  © 2012 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. 7

 Disparate Impact Discrimination (cont’d).  Selection Rates Test: plaintiff compares selection rates of members of protected class with nonmembers in employer’s workforce. According to EEOC, less than 80% may show disparate impact. © 2012 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. 8

 Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin.  © 2012 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. 9

 Policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.  © 2012 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. 10

 Reverse” Discrimination: Title VII also protects against discrimination against majority group individuals, such as white males.  Ricci v. DeStefano (2009) : Supreme Court held City of New Haven’s testing and promotion procedures were race- conscious and discriminatory against white firefighters, violating Title VII. © 2012 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. 11

 Employers must “reasonably accommodate” the “sincerely held” religious practices of its employees, unless to do so would cause undue hardship to employer’s business. © 2012 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. 12

 Employers are prohibited from classifying jobs based on gender, unless employer can prove gender is essential to the job.  Pregnancy Discrimination Act.  Equal Pay Act (1963).  Lilly Ledbetter Fair Pay Act (2009). © 2012 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. 13

 Occurs when an employer causes working conditions to be so intolerable that a reasonable person would feel compelled to quit.  An employee can be “constructively discharged” but still leave voluntarily.  © 2012 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. 14

 Proving Constructive Discharge.  Plaintiff must present objective proof of intolerable working conditions, which employer knew about and failed to correct.  Employee’s resignation must be a foreseeable result of working conditions. © 2012 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. 15

 Title VII protects employees against sexual harassment in the workplace.  There are currently two forms of sexual harassment:  Quid Pro Quo.   Hostile Work Environment.  © 2012 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. 16

 Quid pro quo sexual harassment involves demands for sexual favors are demanded in return for job opportunities, promotions, salary, increases or other tangible benefits. © 2012 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. 17

 Occurs when workplace is permeated with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment and create an abusive working environment. © 2012 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. 18

 For employer to be liable for a supervisor’s sexual harassment, a supervisor must have taken a tangible employment action against the employee.  © 2012 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. 19

 Employer’s Defense:  The Ellerth / Faragher Affirmative Defense is based on two 1998 Supreme Court decisions. Defense has two elements:  (1) Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior, and  © 2012 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. 20

 Ellerth/Faragher Defense (cont’d):  (2) Plaintiff-employee must have unreasonable failed to take advantage of preventative or corrective opportunities to avoid harm.  If an employer can prove both elements, he will not be liable for supervisor’s harassment © 2012 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. 21

 Retaliation by Employers.  CASE 22.1 Burlington Northern and Santa Fe Railroad Co. v. White (2006). Title VII’s anti- retaliation ban extends beyond workplace-related acts. Reassignment duties were adverse to White. © 2012 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. 22

 Harassment by Co-Workers and Others. Employer generally liable only if employer knew or should have known and failed to take action.  Notice to supervisor is sufficient under agency law. Employers may also be liable for harassment by non-employees. © 2012 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. 23

 Same-Gender Harassment. In 1998, Supreme Court held in Oncale v. Sundowner Offshore Services that Title VII prohibitions against sexual harassment extended to same-sex harassment. Easier to prove when harasser is homosexual. © 2012 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. 24

 Online Harassment:  Hostile work environment created using company chat, blogs, .  Employers can avoid liability with prompt remedial action.  Employees may be discharged for using company computers to distribute offensive material to coworkers. © 2012 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. 25

 Liability may be extensive. Plaintiff may receive:  Reinstatement.  Back Pay.  Retroactive Promotions; and  Damages. © 2012 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. 26

 The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers.  © 2012 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. 27

 Procedures under the ADEA.  Plaintiff must show discrimination was THE reason for adverse employment action.  CASE 22.2 Mora v. Johnson Memorial Foundation, Inc. (2010). What was the ‘disputed question of material fact’ the court referred to? © 2012 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. 28

 Replacing Older Workers with Younger Workers. Employee must prove that discrimination was based on age bias. The bigger the age gap the more likely the bias.  State Employees Not Covered by the ADEA. © 2012 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. 29

 The Americans with Disability Act (ADA) requires employers to offer “reasonable accommodation” to employees or applicants with a disability who are otherwise qualified for the job they hold or seek. © 2012 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. 30

 To prevail, plaintiff must show:  She has a “disability.”  She is otherwise qualified for the employment in question; and  She was excluded from employment solely because of the disability.  Plaintiff must first exhaust her claim through the EEOC process. © 2012 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. 31

 ADA defines disability as:  Physical or mental impairment that “substantially limits one or more of major life activities; or  A record of such impairment; or  Being regarded as having such an impairment.  © 2012 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. 32

 2008 Amendments reverse Supreme Court’s narrow definition of disability.  CASE 22.3 Rohr v. Salt River Project Agricultural Improvement and Power District (2009). Diabetes is a disability if it significantly restricts eating. © 2012 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. 33

 Undue Hardship:  If an employee can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made.  Examples: wheelchair ramps. © 2012 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. 34

 Job Applications and Physical Exams.  Modifications to applications and selection process so those with disabilities can compete.  Employers are restricted on pre- hiring questions and physical exams. © 2012 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. 35

 Substance Abusers: o nly FORMER drug users completed or going through supervised drug rehabilitation programs qualify as “disabled.”  Health Insurance Plans: equal access to health care. © 2012 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. 36

 Protects individuals based on associations with other disabled persons. To prevail, plaintiff must show she was:  (1) qualified for the job, (2) subjected to an adverse employment action, and (3) known by her employer to have a relative or an associate with a disability. © 2012 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. 37

 There are four basic types of defenses to employment discrimination claims.   Business Necessity.  Bona Fide Occupational Qualification.  Seniority Systems.  After-Acquired Evidence. © 2012 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. 38

 Requires employer to demonstrate a job qualification is reasonably necessary to the legitimate conduct of the employer’s business.  Business necessity is a defense to disparate impact discrimination. © 2012 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. 39

 BFOQ defense requires an employer to show a particular skill is necessary for the performance of a particular job.  The BFOQ defense is used in cases of disparate treatment discrimination. © 2012 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. 40

 Conditions the distribution of job benefits on the length of time one has worked for an employer.  Can be a defense only if it is a bona fide system, not designed to evade the effects of the anti- discrimination laws. © 2012 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. 41

 Evidence of misconduct, committed by an employee who is suing an employer for employment discrimination.  Uncovered during the process of discovery conducted in preparation for a defense against the suit.  Not an absolute defense for employer. © 2012 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. 42

 Designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes.  Constitutionality of Affirmative Action Programs.  May violate Fourteenth Amendment’s equal protection.  © 2012 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. 43

 Constitutionality (cont’d).  Affirmative action program is constitutional only if it attempts to remedy past discrimination and does not make use of quotas or preferences.  © 2012 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. 44

 Affirmative Action in Schools.  Generally, program that automatically awards minority students specified number of points is unconstitutional. © 2012 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. 45