2. Chapter 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 13 Employment Law II: Discrimination

3. Anti-Discrimination Laws The Constitution: Discrimination by government prohibited by the Equal Protection and Due Process Clauses of the 5 th and 14 th Amendments. Civil Rights Act of 1964: Title VII forbids discrimination in employment because of race, color, religion, sex or national origin. It applies to private-sector employers with 15 or more employees, state and local governments and most of the federal government. Private clubs are exempt. Other Provisions:  The Civil Rights Act of 1866 forbids all forms of racial bias arising out of contract.  The Civil Rights Act of 1991 specifies that, in general, Title VII and the ADA are to 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 11246 forbids discrimination by firms doing business with the federal government and, in some instances, requires affirmative action. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

4. Civil Rights Enforcement Equal Employment Opportunity Commission (EEOC): The federal agency responsible for enforcing federal laws forbidding discrimination in employment. The EEOC investigates discrimination claims; attempts to resolve disputes via mediation and conciliation; and, if necessary, engages in litigation. Approximately 80,000 complaints are filed annually with the EEOC. Litigation: After investigating, the EEOC may file a civil suit or issue a right-to-sue letter to the grievant. The EEOC filed only 291 suits in 2000. Many disputes are resolved in arbitration. When litigated, plaintiffs prevail in only about 30% of the suits. Remedies: May include job reinstatement, back pay, seniority relief, compensatory damages, and punitive damages in some instances. Additionally, the EEOC often negotiates consent decrees that may require new procedures to correct wrongful practices. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

5. Employment Discrimination Analysis: Disparate Treatment Disparate treatment exists where an employer intentionally treats some people less favorably than others because of their race, color, religion, sex or national origin. 1. Plaintiff’s (Employee’s) Prima Facie Case:  Plaintiff belongs to a protected class.  Plaintiff applied for a job for which the defendant was seeking applicants.  Plaintiff was qualified for the job.  Plaintiff was denied the job.  The position remained open and the employer continued to seek applicants. 2. Defendant’s (Employer’s) Case: If plaintiff succeeds with the above, defendant must “articulate some legitimate, nondiscriminatory reason for the employee’s rejection” (for example, greater work experience). 3. Plaintiff’s Response: Plaintiff must then show that the reason offered by defendant was false and merely a pretext to hide discrimination. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

6. Employment Discrimination Analysis: Disparate Impact Disparate impact exists where an employer uses legitimate employment standards that, despite their apparent neutrality, work a heavier burden on a protected class than on other employees. 1. Plaintiff’s (Employee’s) Case:  Plaintiff must identify the specific employment practice or policy that caused the alleged disparate impact.  Plaintiff must prove (often statistically) that the protected class is suffering an adverse or disproportionate impact caused by that employment practice or policy. 2. Defendant’s (Employer’s) Case: Assuming plaintiff succeeds, defendant must demonstrate that the employment practice is both job related and consistent with business necessity. 3. Plaintiff’s Response: Plaintiff must demonstrate that an alternative, less discriminatory business practice is available and employer refuses to adopt it. Example: Griggs v. Duke Power Co. (S. Ct. 1971) McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

7. Statutory Defenses  Seniority: An employer may lawfully apply different standards of compensation or different conditions of employment pursuant to a bona fide (good faith) seniority system, provided such differences are not the product of an intent to discriminate. Further, when layoffs are necessary the legal system may not protect newly hired workers by interfering with legitimate seniority systems.  Employee Testing: Only job-related tests supported by detailed, statistical evidence as to their scientific validity are lawful.  The Four-Fifths Rule: An employer will generally be presumed in noncompliance if the selection rate for any protected class is less than 80% of the rate for the group with the highest rate, unless the employer can prove the job relatedness of the employment practice and demonstrate that a good faith effort was made to find a selection procedure that lessened the disparate impact on protected classes. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

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…”) McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

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: 1. Proof of a nexus between the classification and job performance, and 2. “Necessity” of the classification for successful performance, and 3. That the job performance affected by the classification is the “essence” of the employer’s business operation.  Example: Pietras v. Farmingville Fire District (2d Cir. 1999) McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

10. Equal Pay The Equal Pay Act of 1963 forbids discrimination on the basis of sex. In general, women must receive the 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. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

11. The Law of Sexual Harassment Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature. 1. Plaintiff’s (Employee’s) Case: Plaintiff must prove—  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. 2. Defendant (Employer) is liable:  If wrongdoer was a coworker and employer unreasonably failed to prevent or remedy the harassment where management knew or should have known about it.  If wrongdoer was a supervisor and employee suffered a tangible employment action (e.g., demotion) because of the 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 the harassment promptly and that employee unreasonably failed to take advantage of those measures. Example: EEOC v. R&R Ventures, d/b/a Taco Bell (4 th Cir. 2001) McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

12. Affirmative Action Affirmative action is a means of remedying past discriminatory wrongs and preventing future discriminatory wrongs. An affirmative action plan consciously seeks out minorities for hiring and promotion opportunities and often employs goals and timetables to measure progress toward a workforce representative of the qualified labor pool. In United Steelworkers of America v. Weber (S. Ct. 1979), the Court upheld affirmative action where:  It was part of a plan.  The plan was designed to “open employment opportunities for Negroes in occupations which have been traditionally closed to them.”  The plan was temporary.  The plan did not unnecessarily harm the rights of white employees. From the late ’80s to present, a series of judicial decisions have raised great uncertainty about both the legality and wisdom of affirmative action. Example: Reynolds v. City of Chicago (7 th Cir. 2002) McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

13. Religious Discrimination Title VII forbids discrimination on the basis of religion. That 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 a employer need only bear a de minimus cost to accommodate religious differences, more than that is considered an undue hardship for employers. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

14. Americans with Disabilities Act (ADA) The ADA forbids discrimination in employment, public accommodations, public services, transportation and telecommunications against the disabled. Small businesses with fewer than 15 employees are exempted from the employment portions of the ADA. The Rehabilitation Act of 1973 protects disabled workers in the public sector. A disabled person: 1. Has a physical or mental impairment that substantially limits one or more major life activities, 2. Has a record of such an impairment or 3. Is regarded as having such an impairment. An employer may not discriminate against a qualified person with a disability. A qualified person is one who can perform the essential functions of the job. The Act requires employers to make reasonable accommodations for disabled employees and applicants. Example: Toyota v. Ella Williams (S. Ct. 2002) McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.

15. Age Discrimination in Employment Act (ADEA)  Age discrimination under the ADEA is established under disparate treatment analysis (intentional discrimination), but to date the federal courts are split on the question of applying disparate impact reasoning.  An 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.  The employer may defend by showing that the 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. McGraw-Hill© 2004 The McGraw-Hill Companies, Inc. All rights reserved.