1. © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 1 Chapter 25: Employment Discrimination

2. 2 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Learning Objectives Generally, what kind of conduct is prohibited by Title VII of the Civil Rights Act of 1964? What is the difference between disparate- treatment discrimination and disparate-impact discrimination? What remedies are available under Title VII of the 1964 Civil Rights Act, as amended? What federal law prohibits discrimination based on age and discrimination based on disability? What are the three defenses to claims of employment discrimination?

3. 3 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy. In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices. Enforcement of Title VII by EEOC.EEOC Title VII of the Civil Rights Act of 1964

4. 4 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Intentional vs. Unintentional Discrimination Intentional (“Disparate-Treatment”) Discrimination. For prima facie case, applicant must prove: –She is member of a protected class; –Applied, qualified and rejected for job; and –Employer continued to seek applicants. Unintentional (“Disparate Impact”) Discrimination. –No-protected applicant sues Employer who tries to integrate members of protected classes into workplace.

5. 5 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin. Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job. Reverse Discrimination: discrimination against “majority” such as white males. –See Richi v. Destefano (2009) involving white New Haven firefighters who were discriminated against by fire department be throwing out a promotion test. Discrimination Based on Race, Color, and National Origin

6. 6 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Accommodation: Employers must “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue hardship to employer’s business. Discrimination Based on Religion

7. 7 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Title VII prohibits employers from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job. Plaintiff must show gender was determining factor in hiring, firing or lack of promotion. 2009 “Lilly Ledbetter Fair Pay Act” Equal Pay Legislation: removed time limits to file suit. Constructive Discharge. –Voluntarily leaves because conditions “intolerable.” –Applies to all Title VII discrimination. Discrimination Based on Gender

8. 8 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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.  Sexual Harassment

9. 9 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Hostile environment occurs when workplace is “permeated” 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. Hostile Work Environment

10. 10 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Quid Pro Quo : Harassment by Supervisors Involves demands for sexual favors by a supervisor from a subordinate, in exchange for some workplace benefit. Must have “tangible employment action” for employer liability. Ellerth/Faragher Affirmative Defense.  Retaliation by Employers: 2006: employer’s retaliatory actions may be evidence of harassment. 2009: protection for speaking out about another’s complaint.

11. 11 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. The Ellerth/Faragher Affirmative Defense The Ellerth/Faragher cases (1998) gave employers a defense against sexual harassment claims that absolves them from liability IF the employer can prove: 1.The employer has taken reasonable care to prevent and promptly correct any sexually harassing behavior (by establishing effective antiharassment policies and complaint procedures, for example), AND 2.The plaintiff-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.

12. 12 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Sexual Harassment Issues Co-Workers: employer generally liable only if it knew, or should have known, about harassment and failed to take immediate action. –Employee notice to supervisor is notice to employer under agency law. Non-Employees: employers may also be liable for harassment. Same-Gender harassment also violates Title VII.

13. 13 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Online Harassment Company email systems. Company chat rooms. Posting sexually explicit images on company computer systems, screen savers, etc. Employees will generally not be liable if prompt action taken.

14. 14 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Remedies under Title VII Liability may be extensive. Plaintiff may receive: –Reinstatement. –Back Pay. –Retroactive Promotions; and –Damages.

15. 15 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers. Plaintiff must show: –He was member of protected age group, –Was qualified for the position from which he was discharged, and –Was discharged under circumstances that inferred discrimination. Discrimination Based on Age

16. 16 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Discrimination Based on Age Replacing Older Workers with Younger Workers. State Employees Not Covered by ADEA. U.S. Supreme Court cases: –Kimel v. Florida Board of Regents (2000). –Tennessee v. Lane (2004). Federal Employees Explicitly Covered by the ADEA. Gomez-Perez v. Potter (2008). Case 25.1 Sprint/United Management Co. v. Mendelsohn. Testimony of company’s attitude towards age was not per se admissible and inadmissible.

17. 17 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. Discrimination Based On Disability

18. 18 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Procedures under 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. –Workforce must be more than 15 employees Plaintiff must first exhaust administrative relief with EEOC.

19. 19 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. ADA: What is a “Disability”? ADA defines disability as: –Physical or mental impairment that “substantially limits” one or more of major life activities; or –A record of such impairment; or –Being regarded as having such an impairment. Determination is decided on a case-by- case basis.

20. 20 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2008 Amendments 2008 Congressional Amendments reverse prior Supreme Court cases: –Reverse Supreme Court’s restrictive interpretations of disability, and –Prohibit employers from considering mitigating measures or medications when determining if an individual has a disability. In other words, disability is now determined on a case-by-case basis. Case 25.2 Rohr v. Salt River Project Agricultural Improvement and Power District. Diabetes is a disability if it significantly restricts an individual’s eating (a major life activity).

21. 21 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. –Examples: wheelchair ramps, flexible working hours, improved training materials. (Does not include carpel tunnel syndrome.) ADA: ‘Reasonable Accommodation’

22. 22 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. ADA Issues Reasonable Accommodation: –Job Applications and Pre-Employment Physical Exams. –Substance Abusers (ADA only protects former users). Association Discrimination. –Adverse actions based on stereotypes. Does ADA allow ‘Hostile Environment’ claims? Case 25.3 Francin v. Mosby, Inc. Plaintiff has a claim under ADA based on his association with someone (his wife) who had a disability.

23. 23 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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.  Defenses to Employment Discrimination

24. 24 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. Business Necessity Defense

25. 25 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. The bona fide occupational qualification 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. B.F.O.Q. Defense

26. 26 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. Seniority System Defense

27. 27 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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. While it may serve to limit employee recovery, it does not act as an absolute defense for the employer. After-Acquired Evidence of Employee Misconduct

28. 28 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 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 which violate equal protection. –University of California v. Bakke (1978). –Adarand Constructors v. Pena (1995). –Hopwood v. State of Texas (1996). –Recent Supreme Court decisions 

29. 29 © 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. Gratz v. Bollinger (2003). Awarding 20 points to underrepresented minorities violated equal protection clause. Grutter v. Bollinger (2003). Considering race as a flexibile ‘plus’, however, is constitutional. Distinction: Grutter was flexible, not mechanical. 2007: Parents Involved in Community Schools v. Seattle School District: racial classifications in student assignment plans was necessary to achieve diversity. Latest Supreme Court Decisions