1. Employment Law II: Discrimination13
Employment Law II: Discrimination

2. Employment Law II: Discrimination Chapter 13 Key Points
Identify legal provisions prohibiting discrimination and the available remedies
Know elements of disparate treatment and disparate impact claims and available defenses
Understand the additional provisions applicable to sex, or gender, discrimination
Understand the concept of affirmative action

3. Anti-Discrimination Laws
The Constitution: Discrimination by government prohibited by the Equal Protection and Due Process Clauses of the 5th and 14th Amendments
Civil Rights Act of 1964: Title VII forbids discrimination in employment because of race, color, religion, sex or national origin
Other Provisions:
Civil Rights Act of 1866 forbids all forms of racial bias arising out of contract
Civil Rights Act of 1991 specifies that Title VII and the ADA apply to U.S. citizens working abroad for American-owned or controlled companies
Americans with Disabilities Act (ADA)
Equal Pay Act
Age Discrimination in Employment Act
Executive Order forbids discrimination by firms doing business with the federal government

4. Civil Rights Enforcement
Equal Employment Opportunity Commission (EEOC): Federal agency responsible for enforcing federal discrimination in employment laws; it investigates discrimination claims; attempts to resolve disputes via mediation and conciliation; and, if necessary, engages in litigation
Litigation: After investigating, EEOC may file civil suit or issue right-to- sue letter to the grievant; many disputes are resolved in arbitration; when litigated, plaintiffs prevail only about 30% of the time
Remedies: May include job reinstatement, back pay, seniority relief, compensatory damages and punitive damages; EEOC often negotiates consent decrees that may require new procedures to correct wrongful practices

5. Employment Discrimination Analysis:
Disparate Treatment
Disparate treatment exists where an employer intentionally treats some people less favorably because of race, color, religion, sex or national origin
Plaintiff’s (employee’s) prima facie case:
Plaintiff belongs to protected class
Plaintiff applied for a job for which the defendant was seeking applicants
Plaintiff was qualified
Plaintiff was denied the job
The position remained open and employer continued to seek applicants
Defendant’s (employer’s) case: If plaintiff succeeds above, defendant must “articulate some legitimate, nondiscriminatory reason for the employee’s rejection” (for example, greater work experience)
Plaintiff’s response: Plaintiff must then show reason offered by defendant was false, merely a pretext to hide discrimination

6. Employment Discrimination Analysis: Disparate Impact
Disparate impact exists where employer uses legitimate employment standards that, despite apparent neutrality, work a heavier burden on protected class than on other employees
Plaintiff’s (employee’s) case:
Plaintiff must identify specific employment practice or policy that caused alleged disparate impact
Plaintiff must prove (often statistically) that protected class is suffering an adverse or disproportionate impact caused by employment practice or policy
Defendant’s (employer’s) case: If plaintiff succeeds above, defendant must demonstrate the employment practice is both job related and consistent with business necessity
Plaintiff’s response: Plaintiff must demonstrate an alternative, less discriminatory business practice is available and employer refuse to adopt it
Example: Griggs v. Duke Power Co. (S. Ct. 1971)

7. Statutory Defenses
Seniority: Employer may lawfully apply different standards of compensation or conditions of employment pursuant to a bona fide (good faith) seniority system, provided not the product of an intent to discriminate
Employee Testing: Only job-related tests supported by detailed, statistical evidence as to their scientific validity are lawful
The Four-Fifths Rule: Employer generally presumed noncompliant if selection rate for protected class is less than 80% of rate for group with highest rate, unless employer can prove job relatedness of employment practice and demonstrate a good faith effort was made to find a selection procedure that lessened disparate impact on protected classes

8. National Origin and Racial
Harassment
Title VII forbids employment discrimination, including harassment, based on national origin
The Supreme Court has held that certain phrases in the employment setting cannot be excused as mere rudeness and may, in the totality of the circumstances, add up to discrimination so severe that it creates an abusive work environment; other illegal harassment may include use of a hangman’s noose or use of code phrases (e.g., “Your type,” “You people don’t understand…”)

9. Sex Discrimination and the Bona Fide Occupational Qualification (BFOQ)
Disparate treatment or impact support a sex discrimination claim
An employer can prevail by establishing a BFOQ defense, including:
Proof of nexus between classification and job performance and
“Necessity” of classification for successful performance and
That job performance affected by the classification is the “essence” of the employer’s business operation
Example: Pietras v. Farmingville Fire District (2d Cir. 1999)

10. Equal Pay
Equal Pay Act of 1963 forbids discrimination on basis of sex; in general, women must receive same rate for equal work on jobs requiring equal skill, effort and responsibility and performed under similar working conditions
Unequal wage is lawful if paid pursuant to:
A seniority system
A merit system
A system that measures earnings by quantity or quality of production or
A differential based on “any … factor other than sex”
Lowering the pay of the favored sex to create equal pay violates the Act

11. Sexual Harassment—Part I
Sexual harassment: Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature
Plaintiff’s (employee’s) case:
Unwanted harassment
Harassment based on sex and
Harassment that affected a term, condition or privilege of employment, sufficiently severe and pervasive as to unreasonably interfere with work performance or create a hostile, abusive work environment

12. Sexual Harassment—Part II
Defendant (employer) liable if:
Wrongdoer was coworker and employer unreasonably failed to prevent or remedy harassment where management knew or should have known about it
Wrongdoer was supervisor and employee suffered tangible employment action (e.g., demotion) because of harassment
If wrongdoer was supervisor but no tangible employment action was suffered, employer can avoid liability by proving both that it exercised reasonable care to prevent and correct harassment promptly and that employee unreasonably failed to take advantage of those measures
Example: EEOC v. R&R Ventures, d/b/a Taco Bell (4th Cir. 2001)

13. Example: Reynolds v. City of Chicago (7th Cir. 2002)
Affirmative Action
Affirmative Action: Means of remedying past discriminatory wrongs and preventing future wrongs; affirmative action plan seeks out minorities for hiring and promotion and often employs goals and timetables to measure progress
In United Steelworkers of America v. Weber (S. Ct. 1979), the Court upheld affirmative action where:
It was part of a plan
Plan designed to “open employment opportunities for Negroes in occupations which have been traditionally closed to them”
Plan was temporary
Plan did not unnecessarily harm rights of white employees
Example: Reynolds v. City of Chicago (7th Cir. 2002)

14. Religious Discrimination
Title VII forbids discrimination on basis of religion; religious faith must be sincere and meaningful, not merely a sham to achieve advantages
Employers must take reasonable steps to prevent and remedy religious harassment; but employer need only bear a de minimus cost to accommodate religious differences, more than that is considered an undue hardship for employers

15. Americans with Disabilities Ace (ADA)
ADA: Forbids discrimination in employment, public accommodations, public services, transportation and telecommunications against disabled
Rehabilitation Act of 1973: Protects disabled workers in the public sector
“Disabled” means:
Has a physical or mental impairment that substantially limits one or more major life activities
Has a record of such impairment or
Is regarded as having such an impairment
An employer may not discriminate against a qualified person; qualified person is one who can perform essential functions of the job; employers must make reasonable accommodations for disabled employees and applicants
Example: Toyota v. Ella Wiliams (S. Ct. 2002)

16. Age Discrimination in Employment Act
(ADEA)
Age discrimination is established under disparate treatment (intentional discrimination) or disparate impact analysis
ADEA plaintiff must show that he or she is 40 or older, qualified for the position, and not hired or was terminated or demoted while a younger person received more favorable treatment
Employer may defend by showing termination was based on a legitimate, nondiscriminatory reason or that age is a bona fide occupational qualification (BFOQ)—that is, that only employees of a certain age can safely and/or efficiently complete the work in question