1. Employment Discrimination And Movie References Customized by
Unit R
Employment Discrimination
And Movie References
Customized by
Professor Ludlum
Dec. 1, 2016
Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.

2. The most important federal anti-discrimination laws are:
Title VII of the Civil Rights Act of 1964.
The Age Discrimination in Employment Act.
The Americans with Disabilities Act.

3. §1: Title VII of the Civil Rights Act of 1964
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 _______________employees. Current civil rights issue: adding “sexual orientation” to the list

4. Religious discrimination
In addition to prohibiting religious discrimination, under Title VII, employers must an employee’s religious practices. Enforcement of Title VII by EEOC.

5. Employers must “reasonably accommodate” the “sincerely held” religious practices of its employees, unless to do so would cause to employer’s business.

6. Cases: Thomas v. Indiana Tiano v. Dillards

7. Discrimination Based on Gender
Title VII prohibits sex discrimination in the work place. Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is Plaintiff must show gender was determining factor in hiring, firing or lack of promotion.

8. Sexual Harassment Hostile Work Environment. Quid Pro Quo.
Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, the U.S. Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include a prohibition against sexual harassment.
There are currently two forms of recognized sexual harassment:
Hostile Work Environment.
Quid Pro Quo.

9. Hostile Work Environment
Hostile environment occurs when workplace is “______________________” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment. The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.

10. Harassment by Supervisor
Quid Pro Quo harassment: Involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit. Quid pro quo means

11. Harassment by Co-Workers
Employer generally liable only if employer knew or should have known and failed to take action. Should have known is also called? Employee notice to supervisor is notice to Employer under agency law.

12. Harassment by Co-Workers
Employers may also be liable for harassment by non-employees.
Same-sex harassment also violates Title VII.

13. Online Harassment
Employees can create hostile work environment using chat, to spread racial and sexual jokes and slurs. Employers can avoid liability with prompt remedial action. Employees may be discharged for using company computers to distribute offensive material to coworkers.

14. Ripped from the headlines. Oct
Ripped from the headlines! Oct. 12, 2016 Gretchen Carlson’s sexual harassment lawsuit against Roger Ailes/Fox News

15. Ailes repeatedly dismissed her concerns that her colleagues on Fox & Friends had created a pervasively sexist atmosphere, telling her to learn to 'get along with the boys.‘ "When Carlson met with Ailes to complain, she alleges Ailes replied, 'I think you and I should have had a sexual relationship a long time ago. Sometimes problems are easier to solve that way.' In other conversations, Carlson contends, Ailes underscored what he could do for her career if she would look upon his invitations favorably. And she says he frequently ogled her, commenting on her figure and telling her to turn around so he could see her rear." Carlson, whose contract with Fox News expired in June, says her refusal of sexual advances led to recrimination that included a pay cut, a shift to a lower-profile afternoon show, and the lack of chances to conduct important interviews.

16. Assuming true (everyone settled so…. ) What should happen as a result
Assuming true (everyone settled so….) What should happen as a result? What is a fair result?

17. Two ethics questions: Q1: Who should pay
Two ethics questions: Q1: Who should pay? Q2: If the same situation happened to a Starbucks worker, making $30k, what should the result be?

18. For ALL Title VII discrimination
For ALL Title VII discrimination Race Gender Religion National Origin …

19. Intentional and Unintentional Discrimination
Intentional: “Disparate-Treatment” Discrimination. Applicant must prove:
She is member of a protected class;
Applied, qualified and rejected for job; and
Employer continued to seek applicants.
“Would not hire me because I’m Catholic”

20. Intentional and Unintentional Discrimination
Negligent: “Disparate Impact” Discrimination.
Not personally discriminated against, but since the workforce does not look like the community, we assume there must have been some form of discrimination.
Always the most controversial
Hiring quotas, etc.

21. Population of Hooterville, USA 33% White 33% Black 33% Hispanic If your workplace has 100 employees (must be greater than 15!) then…

22. Population Workplace 33% White 40% White 33% Black 45% Black 33% Hispanic 15% Hispanic Probably acceptable Hispanics under-represented? Assuming no special job skills needed!

23. Population Workplace 33% White 35% White 33% Black 60% Black 33% Hispanic 5% Hispanic Probably not acceptable Hispanics under-represented Only a Hispanic worker can sue! 5 year, 10 year, 15 year report due to EEOC Then….3 Black workers retire…???

24. Famous case exposed on 60 Minutes Workplace = 100% female minority workers Population Workplace 30% White 0% 30% Black 50% 30% Hispanic 50% 10% Indian 0% Indian woman sued for disperate impact…. And won

25. What if employee must have a Ph. D in Art History
What if employee must have a Ph.D in Art History? (in Oklahoma/Texas) Population Qualified Workplace 33% White % Black % Hispanic 9 1 (Unrealistic to need 15+ Art History PhDs?)

26. Quota – must find another Hispanic worker
What if employee must have a Ph.D in Art History? And the Hispanic guy retires?
Population Qualified Workplace
33% White
33% Black
33% Hispanic
Quota – must find another Hispanic worker

27. Constructive Discharge
An employee can be “constructively discharged” and leave voluntarily.
Employer causes working conditions to be so intolerable that reasonable person would feel compelled to quit.
Applies to any Title VII discrimination.

28. Supreme Court Guidelines
Employers have a defense if:
They took “reasonable care to prevent and correct promptly any sexually harassing behavior” by establishing and distributing effective harassment policies and procedures.
That the employee suing for harassment failed to follow these policies and procedures.
Retaliation by Employer.

29. Remedies Under Title VII
Liability may be extensive.
Plaintiff may receive:
Reinstatement.
Back Pay.
Retroactive Promotions; and
Damages.

30. NON-Title VII discrimination
ADEA ADA

31. § 2: Age Discrimination
The Age Discrimination in Employment Act (ADEA) protects individuals over the age of _______________ from workplace discrimination that favors younger workers.
Procedures under the ADEA.

32. ADEA 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.
Not Covered by the ADEA.

33. § 3: Discrimination based on “Disability”
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. The duty of reasonable accommodation ends at the point at where it becomes an undue hardship.

34. ADA To prevail on a claim under ADA, plaintiff must show she:
Has a “disability.”
Is otherwise qualified for the employment in question; and
Was excluded from employment solely because of the disability.
Plaintiff must first exhaust administrative relief with EEOC.

35. ADA: What is a “Disability”?
ADA defines disability as:
Physical or mental impairment that “substantially limits one or more of major life activities”
Determination is decided on a case-by-case basis.

36. A Disability may be Job Specific Employer Specific Two employees may work for the same employer and have the same illness, but only one is disabled

37. Examples of reasonable accommodation:
Employer must make accommodations to work environment for the disabled worker
Examples of reasonable accommodation:
wheelchair ramps, flexible working hours, improved training materials.

38. My Suggestions
Job Applications (Be Careful – only ask questions that are related to the job description!) Job Interviews (DON’T ASK) Pre-Employment Physical Exams. Example: UPS – everyone must be able to lift and carry something that weighs 40 pounds without difficulty.

39. Oklahoma Anti-Discrimination Act Amended Exclusive state remedy for discrimination in employment for race, color, religion, sex, national origin, AND age and disability. Prevailing Party attorney fees Eliminates punitive damages Adds liquidated damages (2x lost wages) Eliminates 15 employee minimum

40. Defenses to Employment Discrimination
There are four basic types of defenses to employment discrimination claims.
Business necessity.
Bona fide occupational qualification.
Seniority systems.
After-acquired evidence of employee misconduct.

41. Business Necessity
The business necessity defense requires the employer to demonstrate that the imposition of a job qualification is reasonably necessary to the legitimate conduct of the employer’s business. Business necessity is a defense to disparate impact discrimination. What about disparate treatment? 

42. Bona Fide Occupational Qualification
The bona fide occupational qualification (BFOQ) defense requires an employer to show that an particular skill is necessary for the performance of a particular job. The BFOQ defense is used in cases of disparate treatment discrimination. Q: Do you need to be white and skinny to work at Abercrombie & Fitch?

43. In a 2004 lawsuit González v. Abercrombie & Fitch, the company was accused of discriminating against African Americans, Latinos, Asian Americans, and women by preferentially offering floor sales positions and store management positions to Caucasian males. The company agreed to a settlement of the class-action suit, which required the company to pay $40 million and discontinue the practice of recruiting employees at primarily white fraternities and sororities In June 2009, British law student Riam Dean, who had worked at A&F's flagship store in London's Savile Row, took the company to an employment tribunal. Dean, who was born without a left forearm, claimed that although she was initially given special permission to wear clothing that covered her prosthetic limb, she was soon told that her appearance breached the company's "Look Policy" and sent to work in the stock room, out of sight of customers. In August 2009, the tribunal ruled the 22-year-old was wrongfully dismissed and unlawfully harassed.

44. In a lawsuit filed in September 2009 by the U. S
In a lawsuit filed in September 2009 by the U.S. Equal Employment Opportunity Commission, 17-year-old Samantha Elauf said she applied, in June 2008, for a sales position at the Abercrombie Kids store in the Woodland Hills Mall, located in Tulsa, Oklahoma. The teen, who wears a hijab in accordance with her religious beliefs, claims the manager told her the headscarf violates the store's "Look Policy". (US Supreme Court voted for Elauf June 1, 2015 six years later) In 2011, the Belgian Centre for Equal Opportunities and Opposition to Racism started an investigation into A&F's hiring and remuneration policies. The firm was suspected of only hiring personnel under 25 years old, making heavy demands on the physical appearance of its staff and rewarding a premium to male models that work shirtless.

45. Seniority Systems
A seniority system is one that conditions the distribution of job benefits on the length of time one has worked for an employer.
A seniority system can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws.

46. After-Acquired Evidence
After-acquired evidence refers to evidence of misconduct, committed by an employee who is suing an employer for employment discrimination, that is uncovered during the process of discovery conducted in preparation for a defense against the suit.

47. Examples: Lying about age on job application.
Lying about licenses on job application.
Lying about education on job application.
Lying about criminal convictions!
Must relate to job qualifications or duties!
While it may serve to limit employee recovery, it does not act as an absolute defense for the employer.
If employer can show person would not have been hired, will limit damages to zero!

48. § 5: Affirmative Action
Affirmative Action programs go one step beyond non-discrimination: they are designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes.
AA has led to “reverse discrimination” cases.
University of California v. Bakke (1978).
Adarand Constructors v. Pena (1995).

49. The Hopwood Case
In 1996, two white law school applicants sued the University of Texas at Austin when they were denied admission. The Fifth Circuit opined:
“Diversity fosters, rather than minimizes, the use of race. It treats minorities as a group, rather than as individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hatred.” Hopwood v. State of Texas, 84 F.3d 720 (5th Cir. 1996).
The U.S. Supreme Court denied certiorari.