1. Discrimination in Employment Chapter 23

2. Goals Recognize the difference between legal and illegal employment discrimination List the various statues governing employment discrimination

3. Legal versus Illegal Discrimination 23-1

4. What’s Your Verdict? Clare has been working at Rich Manufacturing for three years. Lisa has been working there for two months. They both operate computerized machine-tooling equipment. The machines perform many operations, such as drilling, cutting threads, turning, deburring, and surfacing metal objects. Lisa is faster. When a promotion opportunity came along, it was given to Lisa. Clare protested, saying that she was being discriminated against. She was angry because Lisa would be earning almost 30 percent more money than she would. Is Clare correct? Is she a victim of unjustified discrimination? Clare is being discriminated against justifiably. If the employer has a good reason for the treatment the discrimination is justified.

5. When is discrimination illegal Discrimination is a part of everyday life. In the work environment it must be objectively justified. Employment discrimination – defined as treating individuals differently on the basis of race, color, gender, pregnancy, age, religion, disability and national origin. Justified discrimination – judging on dependability, skills, creativity, smarts, and hard work usually receive more favorable treatment.

6. Protected Classes Group characteristics that employers may not consider when making employment decisions. Race and Color Gender Pregnancy Age Religion Disability National Origin

7. Race and Color Includes all persons who are not white. So African Americans, Asians, Filipinos, Hispanics, Native Americans and others

8. Gender Employers may not discriminate against females or males based on their gender. In addition, sexual harassment is illegal.

9. Pregnancy cannot discriminate because of a person’s childbearing condition or plans

10. Age People over the age of 40 are protected

11. Religion People who have religious beliefs of any kind are members of a protected class. This category could include everyone

12. Disability Physically or mentally disabled are afforded limited protection against discrimination.

13. National Origin based on their country of origin. Those who do not speak English or who are not citizens of the United States are protected to a limited extent.

14. Scope of Protection Against Unjustified Conditions of Employment illegal to discriminate in hiring and also any unjustified discrimination in any “term condition, or privilege of employment” Any protected class protected in any aspect of the job.

15. Scope of Protection Governing Most Employers – Employers that have more than 15 employees and are engaged in interstate commerce are subject to federal employment discrimination laws. State gov. agencies, employment agencies, and labor unions also.

16. Checkpoint Name the bases for unjustified discrimination in employment Race, color, gender, and pregnancy, age, religion, disability, national orgin

17. Question Jannette was employed in a glass factory. Her job was to inspect and pack glass jars in cartons. Men were employed in the same capacity, and they were required occasionally to lift the packed cartons. The women were paid 10% less than the men were. Is the difference in pay illegal? The court would hold that Jannette and the other women were entitled to equal pay for equal work and the “equal work” did not mean identical duties.

18. Laws that Prohibit Employment Discrimination Title VII of the Civil Rights Act of 1964 forbids employers from discrimination in hiring, paying, training, promoting, or discharging employees on the basis or race, color, national origin, religion or sex.

19. Laws that Prohibit Employment Discrimination Title VII of the Civil Rights Act of 1964 created Equal Employment Opportunity Commission (EEOC) authority to investigate and settle complaints of job discrimination. It can prosecute offenders. If an employer has discriminated in the past the cours may mandate an affirmative action plan A plan to remedy the past discrimination. Positive steps aimed at offsetting past discrimination by brining the % of minorities and women in the workforce up to their corresponding % in the pool of qualified applicants. Employers that contract with the federal government must submit an affirmative action plan.

20. Laws that Prohibit Employment Discrimination Equal Pay Act of 1963 Prohibits wage discrimination based on sex. Equal pay for equal work. Differences are allowed if based on Merit system Seniority System System basing pay on quantity or quality of production. System based on any factor other than gender.

21. Laws that Prohibit Employment Discrimination Americans with Disabilities Act requires that employers not engage in unjustified discrimination against disabled persons on the basis of their disability. A disability substantially limits a major life activity. It can be physical or mental. Use of illegal drugs is not a disability Homosexuality not a disability Contagious Disease not a disability unless court says so on a case by case basis.

22. Laws that Prohibit Employment Discrimination Americans with Disabilities Act a qualified individual with a disability who can perform the essential functions of the job or who could perform those with a reasonable accommodation. A reasonable accommodation not required if it would produce an undue hardship. (Cost to employer)

23. Laws that Prohibit Employment Discrimination Pregnancy Discrimination Act it is illegal to discriminate because of pregnancy, childbirth, or related medical conditions. Employer may not hire, fire, refuse to promote, or demote a woman because they are pregnant. May not discriminate in providing of fringe benefits (cannot carry a policy that covers everything except pregnancy)

24. Checkpoint Name the laws discussed in this section that prohibit unjustified discrimination in employment Title VII of the Civil rights Act of 1964 Equal Pay act of 1963 Age Discrimination in Employment act of 1967 Americans with Disabilities Act Pregnancy Discrimination Act

25. Question Sven immigrated to the United States at age 12 and obtained citizenship at age 18. He speaks with a thick accent. When he applied for a job as a bank clerk, someone else was selected because the other person was more accurate in counting money. Has Sven been the subject of discrimination? Was the discrimination justified or unjustified? Yes – Sven has been the subject of Discrimination The discrimination, however, was justified.

26. Question “We Wash Windows” is a company that washes windows in a commercial building where many windows are six or seven feet off the ground. Taller people can wash these windows more quickly. Atushi is Japanese. When he applied for a window washer job the company told him they don’t hire Japanese because most Japanese people are short. Atushi is six feet, four inches tall. Has Atushi been the subject of discrimination? Was the discrimination justified or unjustified? Yes. Atushi has been the subject of discrimination. The discrimination was unjustified.

27. Question When Quality Furniture Manufacturing Company faced financial difficulties it began laying off employees. The majority were over the age of 40, although they constituted only 5% of the workforce. Young workers in their twenties were immediately hired to fill the jobs of those discharged. Quality justified this action by noting that increased health insurance costs were the overwhelming reason for its financial problems. As insurance coverage for older employees, especially those 50 and older, costs two to three times what coverage for younger employees cost, it only made common sense to discharge the older employees first. Is this ethical? What statute, if any was violated? The Age discrimination in Employment would have been violated.

28. Question Irene was a Mormon. She believed that other members of her religion were more honest than the general population. When she was asked to hire a bank teller for her employer, she advertised the job as one available only for members of her religion. Is Irene’s action legal? Would it be legal if Irene could prove in court that members of her religion were in fact more honest? No, Irene’s action is not legal. The Civil Rights act of 1964 forbids employers from discrimination in hiring on the basis of religion. Irene’s action would still not be legal even if she could prove that members of her religion were more honest.

29. Proving Illegal Discrimination 23-2

30. Goals Discuss how a case based on unequal treatment is proven Describe how a case based on disparate impact is proven. Recognize the forms of sexual harassment.

31. Unequal treatment Sometimes called disparate treatment employer intentionally treats members of a protected class less favorably than other employees

32. Evidence of Unequal Treatment Cases based on direct Evidence – treatment intentional and open Example: Men only To win only need to prove that denied employment because you’re a member of a protected class.

33. Evidence of Unequal Treatment Cases based on Indirect Evidence Most of today’s cases are these To establish case against employer employee must show the following: The person was a member of protected class. The person applied for the job and was qualified. The person was rejected. The employer held the job open and sought other persons with similar qualifications.

34. Evidence of Unequal Treatment Cases based on Statistics – Gov. can initiate proceedings against company for employment discrimination when there is evidence of a pattern and practice of discrimination. Gov. must show a statistically significant difference between protected class composition of the pool of qualified applicants and the workforce.

35. Question Geraldo, an Hispanic, had 10 years of experience as a finish carpenter. He applied for a job with a local construction company but was turned down. The company continued advertising the position and eventually hired Jake, who was white. He did not have as much experience as Gerldo. Geraldo filed a discrimination suit against the company. At the trial, the company was not able to justify its decision to hire Jake instead of Geraldo. Will a court find in favor of Geraldo or the company? Geraldo, a member of a protected class. The court presumed that the discrimination was intentional and Geraldo won the suit.

36. Employer’s Defenses Business Necessity – Employer’s actions were meant to advance the business rather than to create unjustified discrimination Unequal treatment was justified by a reason that is legal.

37. Employer’s Defenses Bona Fide Occupational Qualifications – a job requirement that compels discrimination against a protected class. Example: Actor for male part in play Must be essential to the business.

38. Employer’s Defenses Seniority – A Bona fide seniority system rewards employees based on length of employment rather than merit and is not intended to discriminate. (Is Justified Discrimination)

39. Employer’s Defenses Pretexts Assert that discrimination is a business necessity or BFOQ (Bona fide occupational qualifications)

40. Checkpoint What are the three main bases for unequal treatment of cases? Direct evidence, indirect evidence and statistics

41. Question Sharon’s machine Shop manufactures fire hydrants. When finished, each hydrant weighs approximately 175 pounds. Part of the job description for hydrant assemblers states that a person hired for this job be able to lift 175 pounds ten times in two minutes. This requirement is similar to the actions required to assemble the hydrants. Is this job requirement a form of illegal employment discrimination? Sharon’s weight-lifting test is neutral on its face. It can be statistically shown, however, that a smaller proportion of women will pass the test. Therefore, it has a disparate impact. However, the test is justified by the business necessity because it is clearly job-related.

42. Disparate Impact Cases Many companies have policies that are neutral on its face. (makes no reference to a protected class) Disparate impact – the policy eliminates more members of protected classes than members of the majority. To win the employee must show statistically that the practice excludes members of a protected class. For the business to win it must show it is a legitimate business necessity.

43. Disparate Impact Cases By Statistical Proof Employee to win must establish that fewer members qualified for a job when the challenged employment practice is used. They Use: The Applicant pool – those qualified for the job without regard to the challenged practice. The Workforce pool – persons actually in the employer’s workforce. The % of the protected class in the applicant pool is statistically higher then the % in the workforce group. This suggests disparate impact. Causation – must be proven and this must link the challenged practice and the difference in % of protected class persons.

44. Checkpoint What does disparate impact mean? The employment policy eliminates more members of protected classes than members of the majority class.

45. Sexual Harassment Cases Two Forms – Quid Pro Quo Hostile Environment

46. Sexual Harassment Cases Quid Pro Quo One thing is exchanged for another The employer may offer any term, condition, or privilege of employment such as a raise or favorable evaluation.

47. Question Ben delivered the internal mail at the headquarters of Antiona’s, a national chain of lingerie shops. Everyday when he entered the product design section, several female employees would whistle at him and call him “honey doo” and other similar terms of endearment. Occasionally, a female worker in the section would pinch him or caress him. Ben mentioned to their manager that the attention made him uncomfortable, but she refused to correct it. What form of sexual harassment is taking place here? Would the company be liable for what is done by its employees and manager? A hostile environment is here? Generally, the employer is liable for the conduct of non-supervisory employees only when the harassment is either know or should have been known. Here the manager knew about the harassment and therefore Antiona’s will be liable if Ben brings a hostile environment lawsuit.

48. Sexual Harassment Cases Hostile Environment Unwelcome sexual comments, gestures, or contact interfere with an employee’s ability to work. When supervisor harasses a subordinate the employer is strictly liable. Employer liable for non-supervisory employee only when the harassment is either known or should have been known to supervisors and they failed to act effectively to prevent further occurrences.

49. Checkpoint What are the two forms of sexual harassment? Quid pro quo and hostile environment

50. Question Pablo interviewed people to serve as clerks at his dry-cleaning business. Pablo thought that he would get more repeat business if he hired attractive male clerks. He advertised and told females that he was only interested in male clerks so they need not bother with an interview. Would this form of discriminating be proved directly or indirectly? Would the case be one based on disparate impact or disparate treatment? This would be proved directly Pablo openly admitted that he is only interviewing men This would be based on disparate treatment. He is treating members of a protected class less favorably than others.

51. Question Finance America reimbursed employees for their job-related educational expenses. Janice applied for reimbursement for a course, but was told, “This isn’t job related.” She learned that another employee Gail, had been turned down, too. Later, Janice met four men with similar jobs who had taken the same course and had been reimbursed. What type of discrimination occurred? What defense is Finance America most likely to employ in this case? Disparate treatment is the type of discrimination that occurred in this case. Women were not reimbursed for the same course. Finance America is most likely to employ a defense of business necessity.

52. Question As a condition of employment, Duke Moving required a high school education or a satisfactory score on a general intelligence test. Both requirements were designed to improve the quality of the workforce but neither requirement was shown to improve job performance. Griggs claimed that the test discriminated against him. He said that, as a minority member, he had to had the educational opportunity afforded others. Moreover, he said, the test did not relate to skills and qualifications that were necessary for employment at Duke. Was Griggs legally correct? If he was sued, what type of discrimination would Griggs claim? Griggs is legally correct. If he sued, he would be claiming disparate impact discrimination.

53. Question When Debbie won the job of administrative assistant to Toby Main, the president of Condoroama, a time share company, she was told the position involved a lot of traveling with the president. Every week, Main flew to various places in the United States, and the Caribbean. After a few weeks of this travel several of her fellow employees stated implying that Debbie was being intimate with her boss, which she was not. The gossip, however, made her very uncomfortable, and she was considering quitting her job as a consequence. What options are open to her instead of quitting? She should report the situation to her boss. He must then take effective means to prevent the recurrence of the hostile environment. If the steps taken are not effective, even if taken in good faith, Debbie can sue for sexual harassment.

54. Question The problem eliminated, Debbie decides to stay on. Eventually, Toby Main retires and his son, Randy, takes over the business. On their last trip to Barbados, Toby made it clear that, unless Debbie granted him sexual favors, he would fire her and replace her with someone who would. What would you advise Debbie to do? Debbie has grounds fro a quid pro quo sexual harassment claim. However, she must secure proof of Randy’s behavior to win.