1. Chapter 36 Equal Opportunity in Employment
PowerPoint Slides to Accompany CONTEMPORARY BUSINESS AND ONLINE COMMERCE LAW 6th Edition by Henry R. Cheeseman
Chapter 36
Equal Opportunity
in Employment
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2. Equal Opportunity in Employment
The right of all employees and job applicants:
To be treated without discrimination; and
To be able to sue employers if they are discriminated against
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3. Equal Employment Opportunity Commission (EEOC)
The federal administrative agency responsible for enforcing most federal antidiscrimination laws
The EEOC is empowered to:
Conduct investigations
Interpret the statutes
Encourage conciliation between employees and employers
Bring suit to enforce the law
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4. Title VII of the Civil Rights Act of 1964
Intended to eliminate job discrimination based on five protected classes:
Race
Color
Religion
Sex
National origin
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5. Scope of Coverage of Title VII (1 of 2)
Title VII applies to:
Employers with 15 or more employees
All employment agencies
Labor unions with 15 or more members
State and local governments and their agencies
Most federal government employment
Indian tribes and tax-exempt private clubs are expressly excluded from coverage
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6. Scope of Coverage of Title VII (2 of 2)
Title VII applies to any term, condition, or privilege of employment including, but not limited to:
Hiring and firing
Work rules
Promotion and demotion
Payment of compensation and benefits
Availability of job training opportunities
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7. Forms of Title VII Actions
Disparate Treatment Discrimination
Occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion
Disparate Impact Discrimination
Occurs when an employer discriminates against an entire protected class
Often, this is proven through statistical data about the employer’s employment practices
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8. Procedure for Bringing a Title VII Action
Private complainant must file a complaint with the EEOC.
The EEOC is given the opportunity to sue the employer on the complainant’s behalf.
If the EEOC chooses not to bring suit, it will issue a right to sue letter to the complainant.
Complainant now has the right to sue the employer.
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9. Remedies for Violations of Title VII
A successful plaintiff in a Title VII action can recover back pay and reasonable attorneys’ fees.
The courts also have broad authority to grant equitable remedies.
A court can award punitive damages against an employer in cases involving an employer’s malice or reckless indifference to federally protected rights.
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10. Race, Color, and National Origin Discrimination
Title VII was primarily enacted to prohibit employment discrimination based on race, color, and national origin.
Race: refers to broad categories such as Black, Asian, Caucasian, and Native American
Color: refers to the color of a person’s skin
National origin: refers to the country of a person’s ancestors or cultural characteristics
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11. Sex Discrimination
Discrimination against a person solely because of his or her gender
Applies equally to men and women
Overwhelming majority of Title VII sex discrimination cases are brought by women
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12. Pregnancy Discrimination Act (1978)
Amendment to Title VII
Forbids employment discrimination because of “pregnancy, childbirth, or related medical conditions”
Work rules that prohibit the hiring of pregnant women violate Title VII
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13. Sexual Harassment (1 of 2)
Refusing to hire or promote someone unless he or she has sex with the manager or supervisor is sex discrimination that violates Title VII
Other forms of conduct, such as lewd remarks, touching, intimidation, posting pinups, and other verbal or physical conduct of a sexual nature, constitute sexual harassment and violate Title VII
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14. Sexual Harassment (2 of 2)
Title VII prohibits sexual harassment that causes a hostile work environment.
The circumstances that create a hostile work environment include:
Frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
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15. Same-Sex Discrimination
The U.S. Supreme Court has held that same-sex sexual harassment and discrimination violate Title VII.
Many state and local laws also prohibit this form of discrimination and harassment in the workplace.
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16. Affirmative Defense in Sexual Harassment Cases
The Supreme Court has determined that an employer may raise an affirmative defense against liability or damages by proving two elements:
The employer exercised reasonable care to prevent and correct promptly any sexual-harassing behavior.
The plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm.
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17. E-Mail Can Create a Hostile Work Environment (1 of 2)
has increased the exposure of businesses to sexual and racial harassment.
often sets the social tone of an office and has been permitted to be slightly ribald.
At some point conduct becomes impermissible and crosses the line to actionable sexual or racial harassment.
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18. E-Mail Can Create a Hostile Work Environment (2 of 2)
differs from many other incidents of harassment because it is subtle and insidious.
The standard of whether creates an illegal hostile work environment is the same as that for measuring harassment in any other context:
The offensive conduct must be severe, and
Cannot consist of isolated or trivial remarks and incidents
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19. Religious Discrimination
Title VII prohibits employment discrimination based on a person’s religion or religious practices.
Under Title VII, an employer is under a duty to reasonably accommodate an employee’s religious practices, observances, or beliefs if it does not cause an undue hardship on the employer.
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20. Defenses to a Title VII Action: Merit
Employers can select or promote employees based on merit.
Merit decisions are often based on work, educational experience, and professionally developed ability tests.
To be lawful under Title VII, the requirement must be job related.
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21. Defenses to a Title VII Action: Seniority
An employer may maintain a seniority system that rewards long-term employees.
i.e., higher wages, fringe benefits, and other preferential treatment
Such systems are lawful if they are not the result of intentional discrimination.
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22. Defenses to a Title VII Action: Bona Fide Occupational Qualification (BFOQ)
Employment discrimination based on a protected class (other than race or color) is lawful if it is:
Job related; and a
Business necessity
This exception is narrowly interpreted by the courts.
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23. Civil Rights Act of 1866
Section 1981 of the Civil Rights Act of 1866 expressly prohibits racial discrimination.
It has also been held to forbid discrimination based on national origin.
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24. Equal Pay Act of 1963
Protects both sexes from pay discrimination based on sex.
The act prohibits disparity in pay for jobs that require:
Equal skill
Equal effort
Equal responsibility
Similar working conditions
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25. Criteria That Justify a Differential in Wages
The Equal Pay Act expressly provides four criteria that justify a differential in wages:
Seniority
Merit
Quantity or quality of product
Any factor other than sex
The employer bears the burden of proving these defenses.
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26. Age Discrimination in Employment Act (ADEA) of 1967 (1 of 2)
Prohibits age discrimination in all employment decisions, including:
Hiring
Promotions
Payment of compensation
Other terms and conditions of employment
The Older Workers Benefit Protection Act (OWBPA) amended ADEA to prohibit age discrimination with regard to employee benefits.
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27. Age Discrimination in Employment Act (ADEA) of 1967 (2 of 2)
ADEA applies to employees who are 40 years of age and older.
Covered employers cannot establish mandatory retirement ages for their employees.
ADEA is administered by the EEOC.
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28. Americans with Disabilities Act (ADA) of 1990
The ADA imposes on employers and providers of public transportation, telecommunications, and public accommodations to accommodate individuals with disabilities.
Title I of the ADA prohibits employment discrimination against qualified individuals with disabilities.
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29. Title I of the ADA requires an employer to make reasonable accommodations to individuals with disabilities that do not cause undue hardship to the employer.
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30. Reasonable Accommodation Under ADA
Reasonable accommodations may include:
Making facilities readily accessible
Providing part-time or modified work schedules
Acquiring equipment or devices
Modifying examination and training materials
Providing qualified readers or interpreters
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31. Qualified Individual with a Disability (1 of 2)
A person who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds
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32. Qualified Individual with a Disability (2 of 2)
A disabled person is someone who:
Has a physical or mental impairment that substantially limits one or more of his or her major life activities,
Has a record of such impairment, or
Is regarded as having such impairment
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33. Forbidden Conduct Under Title I of ADA
Employers are forbidden from asking a job applicant about the existence, nature, and severity of a disability.
Pre-employment medical examinations are forbidden before a job offer.
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34. International Reach of U.S. Anti-discrimination Laws
Civil Rights Act (1991) protects U.S. citizens (but not foreign nationals) employed in a foreign country by U.S.controlled employers.
Foreign operations not controlled by U.S. employers are not covered.
The law contains an express exception that protects U.S.-controlled employers from conflicting foreign laws.
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35. Affirmative Action
Policy that provides that certain job preferences will be given to minority or other protected class applicants when an employer makes an employment decision
Key issues:
Affirmative action plans
Reverse discrimination
Race norming
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36. State and Local Government Anti-discrimination Laws
Many state and local governments have adopted laws that prevent discrimination in employment.
Usually include classes protected by federal equal opportunity laws
Also include classes of persons not protected by federal laws
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