Law and Justice

1. Federal Discriminatory Statutes - 3 primary prohibit employment discrimination a. Title VI: Civil Rights Act of 1964 b. Age Discrimination in Employment Act (1967) c. Americans w/Disabilities Act (1990) ‘ADA’ (1) Taken together: - prohibit discrimination - race / color / gender / national origin / age / disability

(2) Many federal / state statutes - regulate aspects of employment - over-lap primary federal rules 2. Title VII - employers / employment agencies / labor organizations - state / local government agencies (15 or more) a. Prohibits discrimination against employees - hiring / discharge - compensation / terms / conditions / privileges - race / color / gender / natural origin / religion

b. 3 types of behavior are actionable: (1) First: disparate treatment - blatant discrimination / protected group - refuse to hire / promote - discriminatory motive must be proven (2) Second: disparate impact - test / policy / other selection criteria - appears neutral - adverse effect on protected group (3) Third: religion

c. Gaining access to courts - exhaust administrative remedies (1) State / local anti-discriminatory agency - claim filed in timely manner - 60 days to resolve (a) After expiration - file with EEOC (90 days) (b) 180 days to investigate - choose to dismiss

- try to eliminate problem - initiate court proceedings (c) EEOC does not initiate - obtain “Right to Sue” letter days after claim filed (2) Once in court - disparate treatment action (a) Plaintiff member of protected class (b) Applied for / qualified for position

(c) Rejected by employer (d) Employer continued seek applicants / filled with person not of protected class (3) Prima facie case proven - burden shifts to employer - show legitimate reason: hiring/promoting (4) Disparate impact: once employed - connection: policy / selection practice / discriminatory effect (a) Based on gender - applies due to: - pregnancy/sexual harassment

(b) Not discriminatory - same level those not pregnant (c) Discriminatory - deny pregnant temporary leave - others w/disabling condition 2. Two types sexual harassment actionable - take legal action under Title VI a. First: “quid pro quo” - promotions / raises / other job benefits

- offered in return for sexual favors b. Second: “hostile environment” - exposed to sexual conduct / comments - employee finds offensive (1) Two tests for “offensive” must be met: - objective test: “reasonable person” - subjective test: offensive to plaintiff (2) Quid pro quo actions

- employer held strictly liable - managers / supervisors - had / should have had knowledge - not relevant (3) Hostile environment actions - hold employers liable - only if had / should have had knowledge - of harassment / failed to take action 3. Title VII before unclear protected same-sex harassment

a. Oncale vs. Sundowner Offshore Services - US Supreme Curt - Title VII applies to all b. Court allowed “affirmative action” plans - no preferential treatment for any group - commitment to equal opportunities: - recruitment / selection / employment / training

Age Discrimination 1.Age Discrimination in Employment Act (1967) ADEA - prohibits at least 40 years old - upper cap 70 / 1987 Congress removed a. Protects older people - minors (under 18) do not enjoy (1) Regulates all aspects of work environment - hiring / promotion / assignments / firing / wages / working conditions (2) EEOC responsible for enforcement

- modeled after Title VII - investigate / file in court / issue ‘Right to Sue’ (3) Covers all employers / labor unions / employment agencies / government agencies w/20 employees (a) Applies to those 40 years old - ad to hire 25 to 35 years / violation - ad to hire 40+ years / not discriminatory - younger not a protected class (b) State laws violation to discriminate: 18 older - leave ‘age’ undefined to protect all people (c) Title VI: protect against reverse discrimination

2.Disparate treatment / disparate impact - actions brought by ADEA - Bonafide Occupational Qualification Defense - can excuse disparate impact violations a. Against elderly - prohibited in public accommodations - provision of government services b. Housing laws - prohibit against 55 or older - ban insurance companies / refuse-cancel / due to age 3.Disability / illness discrimination

A. Prior laws prohibited discrimination - people with disabilities - ADA enacted in most comprehensive / remedial legislation (1) Prohibits= “any qualified individual with a disability” - defined: “a physical or mental impairment that substantially limits one or more of the major life activities of an individual” (2) Major life activities - seeing / hearing / speaking / breathing / learning / caring for oneself / working

(3) ADA also prohibits discrimination if: - record of having physical impairment - no longer has impairment (a) also applies: - if employer “regards” person as having - even though does not actually have B. To be protected by ADA - must have disability - show as “qualified individual” - can perform “essential functions” - with / without “reasonable accommodations”

(1) Employer may decline: - undue burden - too expensive - hire extra person (2) Reasonable accommodations - modifying work schedule - additional unpaid leave / vacation = medical - moving to vacant position / light duty - assigning “non-essential duties” to another

Gay and Lesbian Rights 1.Last decade saw increased effort - enactment / protection of civil rights - increased attention A. Congress not passed law prohibiting - sexual orientation / preference - states / local governments have - discrimination prohibited in employment / housing / public accommodations B. Romer v. Evans (1996)

- struck down Colorado amendment - prohibited local government protection (1) Violated equal protection clause - identified people of particular trait - denied them protection of the law (2) Gay / lesbian rights activists - decision a critical step - universal equal rights C. Prior to Romer v. Evans