1. Hiring, Promotion, Termination, Compensation, and Leave
Chapter 6

2. Management Contexts, Relevant Laws, and Cases

3. Hiring, Promotion, and Termination
Employment discrimination may occur in different forms. The U.S. Constitution and several federal statues addresses many employment discrimination.
Decisions may be based illegally on:
Race
Sex
Religion
Disability

4. Title VII Title VII of the Civil rights Act of 1964
Protected classes:
Race
Color
Religion
Sex
National origin
Applies to employers with 15 or more full-time employees.
Does not apply to independent contractors or to private membership clubs.
Does not apply to American Indian Tribes or religious organization hiring for religious functions.

5. Types of Discrimination
Adverse employment actions related to:
Hiring
Firing
Layoffs
Job training
Work assignments
Discipline
Job classifications
Provision of benefits

6. Equal Employment Opportunity Commission (EEOC) A Federal Agency
Facts
1. The EEOC issues regulations for implementing Title VII.
2. The EEOC can issue guidelines for analyzing discrimination.
3. An example of #2 is the Enforcement guidelines on Sex Discrimination in the Compensation of Sports coaches in Educational Institutions (EEOC, 1997).

7. The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.
Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and
the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

8. Title VII Remedies Back pay- for work missed due to employment action.
Front pay- for future earnings that would have been received.
Reinstatement- employee goes back to the position.
Retroactive seniority
Injunctive relief- ordering the employer to cease unlawful practices.
Attorneys fees-
Compensatory and punitive damages

9. COACHES

10. Theories of Liabilities and Defenses
Courts use two primary theories of liability in deciding Title VII cases:
I. Disparate Treatment
Claim requires a finding of intentional discrimination:
Direct evidence of intent
Inference from circumstantial evidence relating to the way the employer has treated others
Read p. 103 Biver v. Saginaw Township Community Schools (1986)
Evidentiary burdens:
Burden of production-defendant’s responsibility to produce evidence supporting the defense.
Burden of proof- The responsibility of proving the truth of a claim.

11. Theories of Liabilities and Defenses
2. Disparate Impact
Used when a plaintiff has appropriate statistical evidence that a “neutral” employment practice has had an impact on members of a protected class.
Successful claims are rare:
Difficult to establish that a workforce pool has been negatively impacted.
The common method used of proving discriminatory intent is the McDonnell Douglas test.

12. The McDonnell Douglas Test (A burden-shifting analysis)
Burden of production –need to produce evidence
Burden of proof- need to prove the truth of an issue
Prima facie case- prove that the allegations are true
Preponderance of the evidence- the level of proof required to prevail
SLNDR – some legitimate, nondiscriminatory reason
Page 104 (exhibit 6.4)
Page 105 Read

13. BFOQ Defense
In cases of alleged gender discrimination the BFOQ defense is available:
Bona fide occupational qualification defense
Employer must show that members of the excluded class could not perform essential job functions effectively—and discrimination was justified.
Example:
Male fitness instructor at an all-female health club.
Read page 110

14. TITLE IX:
Prohibits sex discrimination in education programs/activities provided by recipients of federal funds.
Applies to employment discrimination in educational institutions.
Analyzes employment discrimination claims similar to a Title VII claim (burden-shifting).
Title IX

15. NCAA AND TITLE IX
Understanding

16. PART II
CHAPTER SIX

17. Equal Protection Clause (14th Amendment to the Constitution)
Declares that no state shall deny to any person the equal protection of the laws.
State action requirement: Government must be the bad actor for the Constitution to apply.
Applies only when purposeful discrimination is alleged.

18. Equal Protection Clause Tests

19. Ludtke v. Kuhn
Page 113
Read

20. Age Discrimination in Employment Act (ADEA)
Applies to employers with 20 or more employees
Applies to American Indian tribes, religious organizations, and private membership clubs (unlike Title VII)
Prohibits private right of action against state government employers
Does not protect against discrimination based on being too young

21. Examples of Age Discrimination
Forcing retirement due to age
Including age preferences in job ads
Assigning older workers to jobs that do not allow for promotion to higher-level positions
Promoting a younger worker over an older worker, because the older worker may be planning to retire
Hiring a younger worker over a better-qualified older worker

22. Your Perspective
You’ve just been hired as the new skiing instructor at a ski resort in Colorado. You discover that another applicant with 20 years’ of instructing experience was turned down for the job.
What is your reaction?
What do you say to the person who made the hiring decision?

23. Disability Discrimination Relevant Federal Law

24. Disability Discrimination Relevant Federal Law
§504 of Rehabilitation Act of 1973:
1. The disability limits a major life activity.
2. Plaintiff was discriminated against on the basis of the disability.
3. No reasonable accommodation was made.
Americans with Disabilities Act of 1990
Americans with Disabilities Act Amendments Act of 2008

25. Covered Disabilities Physical impairments
Mental impairments/psychological disorders
Infectious/contagious diseases
Past disabilities
Perceived but not real disabilities (i.e., facial deformities, prior cancer treatment)
Not covered:
Temporary injuries or conditions, correctable impairments

26. SPECIAL OLYMPICS

27. § 504 / ADA /ADAAA Conditions Excusing Employer from Liability
Adverse action is not solely based on disability
Employee could not perform essential job functions
Reasonable accommodation is offered
Needed accommodation is an undue hardship or requires fundamental alteration in nature of business

28. Examples of Reasonable / Unreasonable Accommodations
Rendering facilities/equipment accessible and usable
Modifying work schedules
Modifying qualifying exams or training materials
Unreasonable:
Tolerating employee misconduct stemming from a disability
Tolerating frequent absences
Redesigning a job by eliminating many essential job functions

29. Significant Risk Exception
If a risk poses direct threat to safety and well-being of oneself or others, there is no obligation to hire or maintain employment.
Factors in assessing direct threat:
Severity of risk
Likelihood of harm
Available means of reducing risk

30. Competitive Advantage Strategies Hiring, Promotion, and Termination
Review application materials and interview questions to check for inappropriate questions
Encourage a diverse pool of applicants
Review workforce policies to ensure they are applied fairly to all employees
Keep records of performance appraisals
Carefully define essential functions of a job
Make reasonable accommodations for employees with disabilities
(continued)

31. In Your Role as Manager, continued
Do not require medical exams until after an employee has been hired
Seek other perspectives when trying to determine if an accommodation is reasonable or constitutes undue hardship
Avoid asking interview questions with potentially discriminatory implications
Focus on what applicants can do.

32. Discrimination in Compensation Relevant Federal Law
During the 1990s the issue of gender equity saw lawsuits under the following laws:
Title VII
Title IX
Equal Pay Act of 1963

33. Stanley v. USC (1999) Perdue v. City Univ. of NY (1998) Tyler v
Stanley v. USC (1999) Perdue v. City Univ. of NY (1998) Tyler v. Howard Univ. (1993)

34. Coaching Compensation: Key Issues
Differences in coaching responsibilities, pressures, revenue generation
Title VII and Equal Pay Act claims are based on the sex of the employee, but salary disparities are based on the sex of the team.

35. Discrimination Regarding Employee Leave
Pregnancy Discrimination Act of 1978:
Employers to treat pregnancy like any other temporary inability to work and allow pregnant women to take leave time.
Family & Medical Leave Act of 1993:
Guarantees up to 12 weeks of unpaid leave per year that can be used childbirth or adoption or to care for sick primary family members. Employee’s must have the equivalent job upon return.