1. Employment Regulation in the Workplace: Basic Compliance for Managers by Robinson, Franklin, and Wayland Chapter 3 Intentional Discrimination: Disparate Treatment Fall 2009

2. Two Types of Discrimination Disparate Treatment (intentional discrimination). Disparate Treatment (intentional discrimination). Different standards for different individuals. Different standards for different individuals. Disparate Impact (unintentional discrimination). Disparate Impact (unintentional discrimination). The same standards with different outcomes for different groups. The same standards with different outcomes for different groups.

3. Two Methods of Establishing Disparate Treatment A complaining party can prove discrimination in one of two ways: A complaining party can prove discrimination in one of two ways: He can meet his burden of proof by offering direct proof of discriminatory intent or, He can meet his burden of proof by offering direct proof of discriminatory intent or, he can rely on the burden shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792. he can rely on the burden shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792. The latter is based upon circumstantial evidence. The latter is based upon circumstantial evidence.

4. Discrimination Prohibited in Advertising Openings §704 (b) It shall be an unlawful employment practice for an employer, labor organization, or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment. §704 (b) It shall be an unlawful employment practice for an employer, labor organization, or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.

5. Three Stages of a Disparate Treatment Case (1). Prima Facie Case (shifts the burden to the employer) (1). Prima Facie Case (shifts the burden to the employer) (2). Employer’s Rebuttal (there is only a Title VII violation if the employer’s rebuttal fails) (2). Employer’s Rebuttal (there is only a Title VII violation if the employer’s rebuttal fails) (3). Complaining Party's Rebuttal

6. Prima Facie Case (Selection) (1) Complaining party is a member of a protected class. (2) Complaining party was qualified & applied for (or held) the job in question. (3) Complaining party was subjected to an adverse action (not hired or promoted). (4) Similarly situated individuals not from the CP’s protected class (someone with fewer or equal qualifications) were not subjected to the adverse action.

7. Prima Facie Case (Terminations) (1) Complaining party was a member of a protected class, (2) Complaining party was qualified for and held the position she lost, (3) Complaining party suffered an adverse employment action, (4)Other similarly situated individuals not from the complaining party’s class were more favorably treated.

8. Whites are a Protected Class Title VII is not designed to disadvantage a white complaining party. Title VII is not designed to disadvantage a white complaining party. Whites are entitled to the same protection under Title VII as any minority plaintiff. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 280 (1976). Whites are entitled to the same protection under Title VII as any minority plaintiff. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 280 (1976).

9. Disparate Treatment: Employer’s Rebuttal (1) The respondent's actions are based on legitimate nondiscriminatory reasons. Once litigation begins, state your reason for nonselection and stick with it. (2) The respondent's actions are based on a bona fide occupational qualification (BFOQ).

10. Legitimate Nondiscriminatory Reasons The decision to hire, fire, promote, or layoff any employee was based on sound business rationale and not the individual’s protected class status. The decision to hire, fire, promote, or layoff any employee was based on sound business rationale and not the individual’s protected class status. Bona Fide Seniority Systems - to be defensible, the seniority system must be consistently applied to all affected employees, and it was not adopted for discriminatory purposes. Bona Fide Seniority Systems - to be defensible, the seniority system must be consistently applied to all affected employees, and it was not adopted for discriminatory purposes.

11. Legitimate Nondiscriminatory Reasons Merit - to be defensible, it must be based on objective performance, not subjective, criteria. Merit - to be defensible, it must be based on objective performance, not subjective, criteria. Quality of Production - to be defensible, It must be based on clearly defined, measurable and disseminated standards. Quality of Production - to be defensible, It must be based on clearly defined, measurable and disseminated standards. Quantity of Production - like quality, quantity must also be based on clearly defined, measurable and disseminated standards. Quantity of Production - like quality, quantity must also be based on clearly defined, measurable and disseminated standards.

12. Legitimate Nondiscriminatory Reasons Job-Related Experience - to be defensible, the experience should enhance job performance. Job-Related Experience - to be defensible, the experience should enhance job performance. Job-Related Training - to be defensible, the training should be applicable to the incumbent's current job or a future job. Job-Related Training - to be defensible, the training should be applicable to the incumbent's current job or a future job. Job-Related Education - to be defensible, the education should be applicable to the incumbent's current job or a future job. Job-Related Education - to be defensible, the education should be applicable to the incumbent's current job or a future job. In all cases, this must be documented! In all cases, this must be documented! Source: EEOC (1995) Theories of Discrimination: Intentional and Unintentional Discrimination. p. A22 Source: EEOC (1995) Theories of Discrimination: Intentional and Unintentional Discrimination. p. A22

13. Disparate Treatment: Fewer or Equal Qualifications Caveat: Remember that juries too often act as ad hoc personnel review committees. Caveat: Remember that juries too often act as ad hoc personnel review committees. Juries do not always weigh evidence in a rational manner. Evidence and proofs are often ignored. Juries do not always weigh evidence in a rational manner. Evidence and proofs are often ignored. Source: Millbrook v. IBP, Inc., 280 F.3d 1169 (7 th Cir. 2002).

14. Bona Fide Occupational Qualification BFOQs are specifically authorized by § 703(e) of the Civil Rights Act of 1964: BFOQs are specifically authorized by § 703(e) of the Civil Rights Act of 1964: [I]t shall not be an unlawful employment practice for an employer to hire and employ employees... on the basis of [their] religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. [I]t shall not be an unlawful employment practice for an employer to hire and employ employees... on the basis of [their] religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. (42 U.S.C. 2000e-2(e)(1)) (42 U.S.C. 2000e-2(e)(1))

15. Bona Fide Occupational Qualification There are no BFOQs for race. There are no BFOQs for race. King v. Bd. Of Regents Univ. of Wisc. System, 898 F.2d 533, 537 (7th Cir. 1990). King v. Bd. Of Regents Univ. of Wisc. System, 898 F.2d 533, 537 (7th Cir. 1990). Malhorta v. Cotter & Co. 885 F.2d 1305, 1308 (7th Cir. 1989). Malhorta v. Cotter & Co. 885 F.2d 1305, 1308 (7th Cir. 1989). Haynes v. Shelby Memorial Hospital, 726 F.2d 1543,1547 (11th Cir. 1984). Haynes v. Shelby Memorial Hospital, 726 F.2d 1543,1547 (11th Cir. 1984). Miller v. Texas Bd. Of Barber Examiners, 615 F.2d 650, 655 (5th Cir. 1980). Miller v. Texas Bd. Of Barber Examiners, 615 F.2d 650, 655 (5th Cir. 1980).

16. Bona Fide Occupational Qualification BFOQs are permitted only for: BFOQs are permitted only for: Sex Sex Religion Religion National Origin National Origin

17. Bona Fide Occupational Qualification In determining whether or not a BFOQ can be used, two criteria should be considered: In determining whether or not a BFOQ can be used, two criteria should be considered: (1) The essence of the business operation would be undermined by not hiring members of one protected class. (2) There is a factual basis for believing that all, or substantially all, members of a class cannot perform the duties of the job in question.

18. Disparate Treatment: Complaining Party's Rebuttal The respondent's legitimate nondiscriminatory reasons is a pretext. The respondent's legitimate nondiscriminatory reasons is a pretext. False information. False information. Similarly situated employees of a different class were treated differently. Similarly situated employees of a different class were treated differently. Evidence of bias. Evidence of bias. Statistical evidence. Statistical evidence.

19. Remedies under Disparate Treatment (Traditional) Reinstatement Reinstatement Back pay Back pay Front Pay Front Pay Seniority Awards Seniority Awards Attorney's Fees Attorney's Fees Court Costs Court Costs Injunctive Relief ( court order to cease and desist unlawful practices) Injunctive Relief ( court order to cease and desist unlawful practices) Declaratory Relief Declaratory Relief

20. Additional Remedies under Disparate Treatment In instances in which it can be demonstrated that, “... the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” In instances in which it can be demonstrated that, “... the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Source: 42 U.S.C. §1981a(b)(1). Source: 42 U.S.C. §1981a(b)(1).

21. Remedies under Disparate Treatment (CRA 1991) Compensatory Damages Compensatory Damages Punitive Damages Punitive Damages Maximum Punitive and Compensatory Damages: Maximum Punitive and Compensatory Damages: 15-200 $50,000 201-300 $100,000 301-500 $200,000 >500 $300,000 >500 $300,000

22. Civil Rights Act of 1991 “Race norming” is illegal “Race norming” is illegal Provides for jury trail trials, but only when disparate treatment is alleged. Provides for jury trail trials, but only when disparate treatment is alleged. Provides for extraterritorial application of Title VII. Provides for extraterritorial application of Title VII.

23. Civil Rights Act of 1991 Finality of Consent decrees Finality of Consent decrees Government Employee Rights (coverage of Congressional employees) Government Employee Rights (coverage of Congressional employees) Places burden of proof on complaining parties filling disparate impact charges. Places burden of proof on complaining parties filling disparate impact charges.

24. Charge Statistics for Retaliation 2002-2008 2002 2003 2004 2005 2006 2007 2008 All Statues Percentage of Charges 27.0 27.9 28.6 29.5 29.8 32.3 34.3 Title VII Percentage of Charges 24.6 25.4 25.5 25.8 25.8 23.2 25.8

25. Retaliation Title VII makes it an unlawful employment practice for an employer to discriminate against any employee for "making charges, testifying, assisting, or participating in enforcement proceedings.” Title VII makes it an unlawful employment practice for an employer to discriminate against any employee for "making charges, testifying, assisting, or participating in enforcement proceedings.” The employee is protected from any retaliatory action taken by the employer. The employee is protected from any retaliatory action taken by the employer. Whistleblower’s clause Whistleblower’s clause (42 U.S.C. section 2000e-3 (a)) (42 U.S.C. section 2000e-3 (a))

26. Three Elements of Retaliation (1) Protected activity. Opposition to unlawful discrimination. Opposition to unlawful discrimination. Participation in the EEOC compliant process Participation in the EEOC compliant process (2) Adverse action (3) A causal connection between the protected activity and its adverse action.

27. Protected Activities (1) Filing a charge or complaint alleging discrimination. (1) Filing a charge or complaint alleging discrimination. (2) Threatening to file a charge or complaint alleging discrimination. (2) Threatening to file a charge or complaint alleging discrimination. (3) Assisting another employee file a charge or complaint. (3) Assisting another employee file a charge or complaint. (4) Complaining about discrimination. (4) Complaining about discrimination.

28. Protected Activities (5) Organizing or participating in a group which has among its objectives opposing unlawful employment discrimination. (5) Organizing or participating in a group which has among its objectives opposing unlawful employment discrimination. (6) Refusing to obey a workplace order because of a "good faith" belief that it is unlawfully discriminatory. (6) Refusing to obey a workplace order because of a "good faith" belief that it is unlawfully discriminatory.

29. Examples of Adverse Actions (Unlawful Retaliation) (1) Denying an employee the right to participate in the EEO process. This includes threatening to take adverse action against an employee who: Files an EEO complaint Files an EEO complaint Provides testimony or evidence in an EEO hearing. Provides testimony or evidence in an EEO hearing. (2) Harassment and intimidation. (3) Denial of employment benefits.

30. Examples of Adverse Actions (Unlawful Retaliation) (4) Discharge. (5) Discipline. (6) Demotion. (7) Reassignment. (8) Unjustified performance evaluations. (9) Acceleration of disciplinary action.

31. Examples of Adverse Actions (Unlawful Retaliation) (10) Undeserved negative references for former employees. (11) Unwarranted contesting of unemployment compensation claims.

32. Common Myths about Title VII You must hire unqualified protected group members. You must hire unqualified protected group members. You cannot discipline or discharge protected group members. You cannot discipline or discharge protected group members. You must give preferential treatment to protected group members. You must give preferential treatment to protected group members.

33. Common Myths about Title VII You must provide federal equal employment protection to individuals based upon their sexual preference. You must provide federal equal employment protection to individuals based upon their sexual preference. White males under 40 are not protected by federal law. White males under 40 are not protected by federal law.