EEO Law

Copyright South-Western College Publishing Module Topics _ Scope of Title VII _ Role of the EEOC _ Judicial Interpretation

Copyright South-Western College Publishing Module Types of Discrimination _ Racial Discrimination _ Religious Discrimination _ Sex Discrimination _ National Origin Discrimination

Copyright South-Western College Publishing Module EEOC Compliance Process Filing of charge within 180 days EEOC investigation of charge Determination of reasonable cause Conciliation effort Suits by charging party and/or EEOC and the Justice Department Implications of EEOC’s compliance process

Copyright South-Western College Publishing Module EEOC Investigation of Charge EEOC interview of charging party and company officials Examination of company records EEOC can exercise subpoena powers if necessary to obtain cooperation from the parties during the investigation

Copyright South-Western College Publishing Module Determination of Reasonable Cause l A determination of reasonable cause to believe the charge is meritorious will result in an EEOC effort to conciliate l A finding of no reasonable cause will result in the EEOC dismissing the charge

Copyright South-Western College Publishing Module Conciliation effort l EEOC will attempt to provide make whole relief to charging party (back pay, reinstatement, etc…) l EEOC will attempt to eliminate discriminatory practice giving rise to the charge l Failure of conciliation may lead to suits by charging party, the EEOC, or the Justice Department

Copyright South-Western College Publishing Module Implications of the process l Time consuming l Multiplicity of lower court involvement renders difficult uniform evolution of EEO law l Lack of resources limits EEOC’s capacity to file suit

Copyright South-Western College Publishing Module Remedies _ Pay _ Damages _ Compensatory _ Punitive

Copyright South-Western College Publishing Module Charging Party’s Burden of Proof - Disparate Treatment (McDonnell Douglas v. Green) During Hiring and Promotion : Proving the prima facie case Belongs to a protected group Applied for job vacancy Despite qualifications was rejected After rejection the employer continued to screen or employ other applicants

Copyright South-Western College Publishing Module Overcoming Presumption of Discrimination - Disparate Treatment Claimant not qualified Others more qualified Qualified but….(poor references, lack of seniority, etc….)

Copyright South-Western College Publishing Module Proving Pretext Evidence of hostility towards minorities (e.g. use of racial epithets, articulation of policy to limit minority employment) Similarly situated minority employees treated more advantageously Employers use of evasive, conflicting, or imprecise reasons for rejecting minority candidate

Copyright South-Western College Publishing Module Proving Discrimination in Disparate Impact Cases Charging party has initial burden of proof Complainant must demonstrate neutral policy disproportionately rejects protected class members Proof - shown by statistics Complainant need not prove hostile employer motive

Copyright South-Western College Publishing Module Overcoming the Presumption of Discrimination - Adverse/Disparate Impact Charging party’s statistics are in error Test/policy is valid (job related) and necessary Reduce requirements to validate criteria where jobs have an immediate impact on public safety

Copyright South-Western College Publishing Module EEOC Guidelines on Uniform Selection OK. You can use the procedure. There are no Title VII implications. Has the test, device, or procedure been found valid? (Does it predict job performance?) Is there a valid alternative test with no, or less, adverse impact? START: An employee selection device is utilized Does it have an adverse impact on a Protected group? Is there an adverse impact in the overall result of all selection devices used? (The bottom line.) STOP! Your use of the original procedure violates Title VII. In the future, use the valid alternative. Federal enforcement agencies are not likely to pursue action, but individuals may still seek recourse. STOP! Your use of this procedure violates Title VII. Nest time try another selection device. Is the use of the procedure necessary for the safe and efficient operation of the organization? OK. Use the procedure despite its adverse impact on a protected group. STOP! Your use of the procedure violated Title VII. YES NO

Copyright South-Western College Publishing Module MEANS OF ACCOMODATION Use of substitutes Performance of assignment at different times Transfer of employee

Copyright South-Western College Publishing Module MEANING OF UNDUE HARDSHIP The extent of the hardship must be more than de minimus cost This standard has to be made on a case by case basis with due regard to: Number of employees seeking accommodation Size of the employer Nature of an employer’s operation Employer can be required to bear administrative costs necessary for providing the accommodation: Bookkeeping costs associated with payroll substitution changes Undue hardship is not demonstrated by speculation on hardships that may arise

Copyright South-Western College Publishing Module PRINCIPLES OF ACCOMMODATION The individual employee seeking religious accommodation has an obligation to cooperate with the employer Personal preference is not to be confused with personal religious creed A union need not modify the seniority provisions of its collective bargaining agreement in order to accommodate the religious practices of an employee An employee seeking religious accommodation must give adequate notice to the employer of his/her need for accommodation. When an employee offer to work his/her Sabbath in emergencies he/she does not give up their right of accommodation in the future. Employees may suffer financial sacrifices due to the working of the accommodation mechanism

Copyright South-Western College Publishing Module ESTABLISHING A BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ) l Sex is a BFOQ only where the employer can demonstrate: The the essence of the business operation would be undermined by the employment of members of the opposite sex. That all or nearly all member of the opposite sex would not be able to perform.

Copyright South-Western College Publishing Module BFOQ STANDARD WILL ONLY BE MET IN A LIMITED NUMBER OF JOBS When necessary for considerations of authenticity e.g. actors and actresses BFOQ cannot be established on the basis of customer preferences Fetal protection policies do not serve as a basis for excluding women from positions

Copyright South-Western College Publishing Module PREGNANCY SHOULD BE TREATED LIKE ANY OTHER DISABILITY DISCRIMINATION ON BASIS OF PREGNANCY IS UNLAWFUL INDIVIDUALS MUST BE JUDGED ON THE BASIS OF THEIR ABILITY TO PERFORM PREGNANCY SHOULD BE TREATED LIKE ANY OTHER DISABILITY COMMENCEMENT OR DURATION OF MATERNITY LEAVE TO BE HANDELED IN ACCORDANCE WITH REGULAR COMPANY POLICY REGARDING OTHER LEAVES NO REQUIREMENT TO PAY FOR HEALTH INSURANCE BENEFITS FOR ABORTION

Copyright South-Western College Publishing Module SEXUAL HARRASSMENT l Nature of Sexual Harassment Unwelcome sexual advances Requests for sexual favors Verbal, visual, or physical conduct of a sexual nature

Copyright South-Western College Publishing Module Sexual Harassment Violates Title VII when: l It explicitly or implicitly is made a condition of employment The employee is informed or led to believe that submission is a condition for the receipt of favorable working conditions, or The employee’s rejection of sexual overtures results in his/her being the victim of retaliation Such conduct interferes with the person’s ability to work or creates an intimidating, hostile, or offensive working environment

Copyright South-Western College Publishing Module RESPONSIBILITY OF EMPLOYER FOR CONDUCT OF STAFF Organization will always be held liable if supervisors engage in quid pro quo harassment Organization will be liable for the hostile environment harassment engaged in by supervisors that has severe or pervasive unless employer can demonstrate that: It exercised reasonable care to prevent and promptly correct the sexually harassing behavior and The employee unreasonably failed to take advantage of any preventive or corrective opportunities to avoid harm

Copyright South-Western College Publishing Module ORGANIZATION WILL BE RESPONSIBLE FOR SEXUAL HARASSMENT OF EMPLOYEE BY OTHER EMPLOYEES IF: Employer knew or should have known of conduct Failed to take corrective action

Copyright South-Western College Publishing Module STEPS TO INSURE COMPLIANCE Develop written policy spelling out organization’s position that sexual harassment either by supervisors or employees Train management and employees Take aggressive disciplinary action against offenders Keep records showing disciplinary action Respond quickly and affirmatively to charges