What is Discrimination? First question, is all discrimination illegal? Answer: No.

Employment at Will Doctrine Whose will? In general, employers are free to hire and fire, in other words, no reasons are needed. Good cause, no cause, bad cause

Who are “at will” employees? Essentially anyone without a written contract Best way to deal with concept of discrimination is in terms of exceptions to the at-will doctrine: Protected classes of employees race, color, national origin, religion, sex, pregnancy, disability, age Protected types of activities harassment, medical leave, concerted activities (organizing)

Hiring Discrimination Failure to hire Non-valid employment tests Discriminatory pre-hiring ads Discriminatory Referrals (hiring halls)

Discriminatory Conditions of Employment Wages and benefits Promotion Pay raises Performance reviews Work assignments Leaves of absence Seniority Training opportunities

Dismissals Layoffs Post-employment references Constructive discharge cases

Other Issues Affirmative action (voluntary remedies for effects of past disc.) Sharing burden for past discrimination Whistleblowing protection

Americans with Disabilities Act Discrimination on basis of physical or mental disability Asking applicants about past or current medical conditions Pre-employment medical exams Creating or maintaining workplaces with substantial physical barriers

Statutory standards that require interpretation: Reasonable accommodation Qualified workers

Who is Disabled? Very Broad Definitions Substantial limits on major life activities (HIV) Record of impairment Regarded as having an impairment

One way to resolve these issues is to look at job descriptions, the functional analyses of job components. Essential function questions: Are employees in this position required to do this function? Does position exist to perform the function? How many people are available to do the function? How much expertise is required? How much time is spent performing the function?

Undue Hardship Considerations Nature and cost of accommodation Employer’s financial resources Nature of business Accommodation costs already incurred

Activism Analyze job and write down essential functions List precisely what job-related limitations imposed by condition Note how limitations can be overcome by accommodations Identify potential accommodations and assess their effectiveness Document all aspects including cost and availability accomodation