1. Slides developed by Les Wiletzky Wiletzky and Associates Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. PowerPoint Slides to Accompany CONTEMPORARY BUSINESS AND ONLINE COMMERCE LAW 5 th Edition by Henry R. Cheeseman Chapter 35 Equal Opportunity in Employment

2. 35 - 2Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Equal Opportunity in Employment The right of all employees and job applicants: 1.To be treated without discrimination; and 2.To be able to sue employers if they are discriminated against

3. 35 - 3Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

4. 35 - 4Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Title VII of the Civil Rights Act of 1964 protected classes: Intended to eliminate job discrimination based on five protected classes: 1.Race 2.Color 3.Religion 4.Sex 5.National Origin

5. 35 - 5Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

6. 35 - 6Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Scope of Coverage of Title VII (2 of 2) any term, condition, or privilege of employment 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

7. 35 - 7Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Forms of Title VII Actions Disparate Treatment Discrimination individual Occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion Disparate Treatment Discrimination individual Occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion Disparate Impact Discrimination protected class Occurs when an employer discriminates against an entire protected class Often, this is proven through statistical data about the employer’s employment practices Disparate Impact Discrimination protected class Occurs when an employer discriminates against an entire protected class Often, this is proven through statistical data about the employer’s employment practices

8. 35 - 8Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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 right to sue letter 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

9. 35 - 9Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

10. 35 - 10Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Race, Color, and National Origin Discrimination race, color, and national origin Title VII was primarily enacted to prohibit employment discrimination based on race, color, and national origin Race: Race: refers to broad categories such as Black, Asian, Caucasian, and Native American Color: Color: refers to the color of a person’s skin National Origin: National Origin: refers to the country of a person’s ancestors or cultural characteristics

11. 35 - 11Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

12. 35 - 12Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Pregnancy Discrimination Act (1978) Amendment to Title VII “pregnancy, childbirth, or related medical conditions” Forbids employment discrimination because of “pregnancy, childbirth, or related medical conditions” Work rules that prohibit the hiring of pregnant women violate Title VII

13. 35 - 13Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Sexual Harassment (1 of 2) sex discrimination Refusing to hire or promote someone unless he or she has sex with the manager or supervisor is sex discrimination that violates Title VII sexual harassment 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

14. 35 - 14Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Sexual Harassment (2 of 2) hostile work environment 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.

15. 35 - 15Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. The Reasonable Woman Standard “reasonable person” In most cases, the courts use a “reasonable person” standard to determine whether certain conduct violates the norms of society “reasonable woman” For cases involving sexual harassment, several courts have adopted the “reasonable woman” standard i.e., evaluating the severity and pervasiveness of sexual harassment from the perspective of the victim. “reasonable person” In most cases, the courts use a “reasonable person” standard to determine whether certain conduct violates the norms of society “reasonable woman” For cases involving sexual harassment, several courts have adopted the “reasonable woman” standard i.e., evaluating the severity and pervasiveness of sexual harassment from the perspective of the victim.

16. 35 - 16Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Same-Sex Discrimination same-sex sexual harassment and 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

17. 35 - 17Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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: 1.The employer exercised reasonable care to prevent and correct promptly any sexual-harassing behavior 2.The plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

18. 35 - 18Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. E-Mail Can Create a Hostile Work Environment (1 of 2) E-mail has increased the exposure of businesses to sexual and racial harassment E-mail often sets the social tone of an office and has been permitted to be slightly ribald At some point e-mail conduct becomes impermissible and crosses the line to actionable sexual or racial harassment

19. 35 - 19Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. E-Mail Can Create a Hostile Work Environment (2 of 2) E-mail differs from many other incidents of harassment because it is subtle and insidious The standard of whether e-mail 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

20. 35 - 20Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Religious Discrimination Title VII prohibits employment discrimination based on a person’s religion or religious practices reasonably accommodate undue hardship 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

21. 35 - 21Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Defenses to a Title VII Action: Merit merit Employers can select or promote employees based on merit Merit decisions are often based on work, educational experience, and professionally developed ability tests job related To be lawful under Title VII, the requirement must be job related

22. 35 - 22Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Defenses to a Title VII Action: Seniority seniority system An employer may maintain a seniority system that rewards long-term employees e.g., higher wages, fringe benefits, and other preferential treatment Such systems are lawful if they are not the result of intentional discrimination

23. 35 - 23Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

24. 35 - 24Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Civil Rights Act of 1866 Section 1981 of the 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

25. 35 - 25Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

26. 35 - 26Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Criteria That Justify a Differential in Wages Equal Pay Act 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

27. 35 - 27Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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 Older Workers Benefit Protection Act (OWBPA) The Older Workers Benefit Protection Act (OWBPA) amended ADEA to prohibit age discrimination with regard to employee benefits

28. 35 - 28Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

29. 35 - 29Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Americans with Disabilities Act (ADA) of 1990 ADA The ADA imposes on employers and providers of public transportation, telecommunications, and public accommodations to accommodate individuals with disabilities Title I of the ADA Title I of the ADA prohibits employment discrimination against qualified individuals with disabilities

30. 35 - 30Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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.

31. 35 - 31Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

32. 35 - 32Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

33. 35 - 33Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. Qualified Individual with a Disability (2 of 2) disabled person A disabled person is someone who: 1.Has a physical or mental impairment that substantially limits one or more of his or her major life activities, 2.Has a record of such impairment, or 3.Is regarded as having such impairment

34. 35 - 34Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

35. 35 - 35Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. International Reach of U.S. Anti- discrimination Laws Civil Rights Act (1991)U.S. citizens 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

36. 35 - 36Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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

37. 35 - 37Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 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