1. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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CHAPTER 23: EMPLOYMENT DISCRIMINATION
Chapter 23 surveys the subject of employment discrimination, including what types of discrimination are legal and what defenses are available.
Identify classes of protected persons
Identify employers’ major defenses in discrimination suits
Determine how to prove unequal treatment
Explain what constitutes sexual harassment
Explore major legislation prohibiting discrimination
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

2. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Hot Debate (Page 432):
Phan’s parents were born in Vietnam. They spoke Vietnamese in the home. Phan did not learn English until he started kindergarten. Upon graduating from high school, Phan’s language skills were still below par. When Phan applied for a job, he was asked to take an English grammar test. He took the test but failed, and therefore was denied employment. Phan contended that his life circumstance caused him to fail the test. The prospective employer said it didn’t care about Phan’s life circumstance, only how well he could do the job.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

3. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Hot Debate (Page 432):
Why should Phan have been given the job?
Why should Phan NOT have been given the job?
Phan SHOULD have been given the job because the English grammar test was not fair to people in Phan’s situation.
Phan should NOT have been given the job because adequate language skills were required for the job. Because he did not have those skills, he was not qualified. An employer should not be forced to hire an unqualified person.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

4. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Hot Debate (Page 432):
Who’s right and who’s wrong?
Phan should have been given the job IF the employer is not able to show that the English grammar requirement was a BFOQ (bona fide occupational qualification) necessary to perform the job.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

5. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Unjustified Discrimination
Which examples are illegal discrimination?
A male employer hires only women because he thinks they
are better employees.
A female employer hires only women because she thinks
women are usually discriminated against.
An employer hires only women who are past childbearing
age.
An employer hires only people under age 40.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

6. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Unjustified Discrimination
What is employment discrimination?
Employment discrimination in the workplace is treating
individuals differently on the basis of race, color, gender,
national origin, or religion.
The law compels us to judge each person as an individual,
and not as a member of a particular group (“protected
class”).
Federal laws only apply to employers of 15 or more who
are engaged in interstate commerce.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

7. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Unjustified Discrimination
What is the difference between justified discrimination and unjustified discrimination?
Justified discrimination in the workplace occurs when
favorable treatment is given to workers who are judged as
dependable, skilled, creative, smart, or hard working.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

8. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 433)
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 because Lisa would be earning almost 30 percent more money than she would.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

9. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 433)
Is Clare correct? Is she a victim of unjustified discrimination?
No. Clare is being justifiably discriminated against. Lisa is being rewarded because of good work performance.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

10. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Types of Unjustified Discrimination
Under federal law, certain criteria and their associated protected classes cannot be considered when making employment decisions:
Race and Color (includes all non-whites)
Gender (includes sexual harassment)
Pregnancy (childbearing condition)
Age (over 40)
Religion (category could include everyone)
Disability (physical and mental)
National Origin (includes non-US. Citizens & non-English-
speaking)
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

11. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 434)
Stephanos is Greek and has a strong accent. He is living in the United States. He has a Ph.D. in engineering from a Greek university. When Stephanos applies for engineering jobs, he often encounters resistance from those who do not feel that a person with a strong accent can do good engineering work. Stephanos knows that, unlike many countries, the United States has laws that forbid employment discrimination. He assumes these laws are aimed at helping minority groups in this country like Blacks and Hispanics. He does not think these laws could protect him.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

12. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 434)
Is Stephanos Correct?
No. The laws DO protect Stephanos. Stephanos is being discriminated against because his accent is a signal of his national origin. That is illegal.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

13. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 434)
Gifford is an African American. He works for a company that has a good reputation for hiring people of both sexes, from all racial groups, and without regard to age, religion, handicap, or national origin. About half of Gifford’s colleagues and superiors are African American. Pay rates are equal among the majority and all protected classes. Gifford’s only complaint about the company is that white males seem to be assigned overtime more often than anyone else. Gifford concludes that because the company does such a good job in hiring protected classes, he does not have a legal basis for suing.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

14. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 434)
Is Gifford correct?
No. Gifford could win a suit even if the employer discriminated only in allocating overtime.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

15. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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The Scope of Protection
Conditions of Employment:
In addition to protected classes, the following job aspects are covered: hiring, pay, promotions, training, overtime, educational opportunities, shift rotations, firings, layoffs, post-employment letters of recommendation, etc.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

16. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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The Scope of Protection
Organizations Subject to these Laws:
Employers with 5 or more employees engaged in interstate
commerce
Agencies of state governments, employment agencies, and
labor unions
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

17. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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How Can “Unequal Treatment” Be Proved?
Definition:
Unequal treatment (also called disparate treatment) means that an employer treats members of a protected class less favorably that other employees.
In order for treatment to be unequal, it must be intentional.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

18. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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How Can “Unequal Treatment” Be Proved?
Unequal treatment cases are based on the nature of the evidence.
Direct Evidence
Indirect Evidence
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

19. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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How Can “Unequal Treatment” Be Proved?
Direct Evidence:
Newspaper ads that say “men only”
Flyers stating “no Irish” or “no Jews” need apply
Letters stating “we have a policy against hiring women in
these positions”
In direct evidence litigation, the employee must
only prove denial of employment based on membership in
a protected class.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

20. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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How Can “Unequal Treatment” Be Proved?
Indirect Evidence:
In these cases, the employer denies intent.
The employee must therefore show the following:
The person was a member of a 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
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

21. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 436): Unequal Treatment Case
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. Jake was white. He did not have as much experience as Geraldo. At the trial, the company was not able to justify its decision to hire Jake instead of Geraldo.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

22. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 436)
Will the court find in favor of Geraldo or the company?
Yes. Geraldo, a member of a protected class, applied for a job for which he was qualified. He was rejected and the company held the job open and later hired Jake. The court presumed that the discrimination was intentional and Geraldo won the suit.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

23. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 436): Unequal Treatment
Sometimes employment discrimination can be so subtle that individual cases are impossible to prove but the overall result is a much lower percentage of the protected class in the employee’s workforce than in the general population. In such a case, the government must prove a case of illegal discrimination using statistics.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

24. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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How Can “Unequal Treatment” Be Proved?
Employer Defenses:
Business Necessity
In an indirect proof case the employer will argue that actions were meant to advance the business rather than to create unjustified discrimination.
Bona Fide Occupational Qualification (BFOQ)
The employer argues that this is a job requirement that compels discrimination against a protected class. Airlines alleged that passengers preferred to be served by females, so they needed to preserve the policy of female-only flight attendants.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

25. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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How Can “Unequal Treatment” Be Proved?
Employer Defenses:
Seniority
A bona fide seniority system rewards employees based on the length of employment rather than merit and is not intended to discriminate.
The Supreme Court permits seniority to be used even when it perpetuates past discrimination.
A pretext is when an employer asserts business necessity or BFOQ to cover for discrimination.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

26. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What is Disparate Impact?
Disparate impact occurs when a policy eliminates more members of protected classes than members of the majority.
Example: If prison guards are required to be six feet tall, this would eliminate a higher proportion of Asians, Hispanics, and women than white and black males.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

27. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Statistical Proof of Disparate Impact
The employer must prove that fewer members of the protected class are qualified.
This is done by examining two groups:
Applicant Pool
Those qualified for the job without regard to the challenged practice
Workforce Pool
Persons actually in the employer’s workforce
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

28. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Statistical Proof of Disparate Impact
The percentage of protected class individuals in each pool is then compared. If the percentage in the applicant pool is statistically higher than the percentage in the workforce group, this suggests disparate impact.
But one other element must be proven. This is causation. Causation is a linking of the challenged practice and the difference in percentages of protected class persons.
After causation is established, the employee has proven disparate impact.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

29. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 438)
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.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

30. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 438)
Is this job requirement a form of illegal employment discrimination?
No. The policy is regarded as neutral on its face. This means the policy makes no reference to a protected class. The policy does have a disparate impact on a protected class because more men will probably be able to satisfy the job requirement than women. However, the test is justified by business necessity because it is clearly job-related.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

31. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Proving Pattern and Practice of Discrimination
In some cases, the government can initiate proceedings against a company where there is evidence of a pattern and practice of discrimination.
The government simply shows a statistically significant difference between the protected class composition of the pool of qualified applicants and the workforce.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

32. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 439)
Beck wanted to be considered for advanced training at her company’s headquarters. Their bosses nominated employees for the training. In Beck’s job classification, there were about 80 men and 60 women. Beck’s boss nominated her. Of the 20 people nominated for the home-office training, half were men and half were women. Of the 10 people selected for the training, all were men.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

33. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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What’s Your Verdict? (Page 439)
Is Beck’s employer liable for employment discrimination?
Yes. Beck’s employer would probably be liable under pattern and practice.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

34. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Sexual Harassment
Sexual harassment takes two forms:
quid pro quo
One thing is exchanged for another.
hostile environment
This involves unwelcome sexual comments, gestures, or contact that interferes with an employee’s ability to work.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

35. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Legislation Prohibiting Discrimination
The Civil Rights Act of 1964
Prohibits employment discrimination
Established the EEOC (investigates & conciliates complaints)
Courts may mandate an Affirmative Action plan if an employer has discriminated in the past.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

36. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Legislation Prohibiting Discrimination
Equal Pay Act of 1963
Prohibits wage discrimination on account of sex
Women who do the same work or substantially equal work as that of men must be paid at the same rate.
Differences in pay are allowed due to: merit system, seniority system, system basing pay on quantity or quality of production, system based on any factor other than gender
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

37. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Legislation Prohibiting Discrimination
Americans with Disabilities Act of 1990
Prohibits unjustified discrimination against disabled persons on the basis of their disability—must be able to perform the essential functions of the job with a reasonable accommodation.
A disability is something that substantially limits a major life activity (physical or mental).
Not covered: current use of illegal drugs, homosexuality, transexuality; contagious diseases may be covered based on individual medical judgments.
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

38. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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Legislation Prohibiting Discrimination
Pregnancy Discrimination Act
Prohibits discrimination due to pregnancy, childbirth, or related medical conditions.
Actions prohibited are firing, refusal to hire, refusal to promote, or demotion
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)

39. CHAPTER 23: EMPLOYMENT DISCRIMINATION
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The End
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BUSINESS LAW (Ms. Hawkins)
BUSINESS LAW (Ms. Hawkins)