1. Discrimination Laws: Title VII of the Civil Rights Act of 1964 CHAPTER THREE

2. Single most important piece of legislation defining employment law rights Prohibits discrimination in housing, education, employment, public accommodations, and the receipt of federal funds on the basis of race, color, gender, national origin, or religion A Historic Rights Act

3. STATUTORY BASIS a.It shall be an unlawful employment practice for an employer ─ 1.to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin; or 2.To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. sec. 2000e et seq., sec. 703(a)

4. Subsequently amended several times –1972 – Equal Opportunity Employment Act Expanded coverage to include government employees Established Equal Employment Opportunity Commission (EEOC) to enforce the act –1978 – Pregnancy Discrimination Act –Civil Rights Act of 1991 Added jury trials, compensatory and punitive damages

5. 5 The Concept of Employment Discrimination Definition: –A limitation or denial of employment opportunity based on protected class characteristics of a personprotected class In essence, “adverse employment actions” –Liability arises not from prejudice alone, but from its effects on employment opportunities.

6. 6 Major Federal Antidiscrimination Statutes Title VII of Civil Rights Act of 1964 Equal Pay Act Age Discrimination in Employment ActAge Discrimination in Employment Act Rehabilitation Act Pregnancy Discrimination Act Americans with Disabilities Act

7. 7 Protected Classes, Federal 1 Race, Color –Title VII, Civil Rights Act, 42 U.S.C. §1981Title VIICivil Rights Act42 U.S.C. §1981 Sex –Title VII, Civil Rights Act, Equal Pay ActTitle VIICivil Rights ActEqual Pay Act National Origin –Title VII, Civil Rights Act, 42 U.S.C. §1981, Immigration Reform and Control ActTitle VIICivil Rights Act42 U.S.C. §1981 Immigration Reform and Control Act Religion –Title VII, Civil Rights ActTitle VIICivil Rights Act

8. 8 Protected Classes, Federal 2 Citizenship (citizens or legal aliens) –Immigration Reform and Control ActImmigration Reform and Control Act Age 40 and over –Age Discrimination in Employment ActAge Discrimination in Employment Act Disability (qualified individual with a disability) –Americans with Disabilities Act; The Rehabilitation ActAmericans with Disabilities ActThe Rehabilitation Act

9. 9 Protected Classes, Federal 3 Pregnancy (pregnancy, childbirth, related) –Pregnancy Discrimination ActPregnancy Discrimination Act Veterans (military service) –Uniformed Services Employment & Reemployment Rights ActUniformed Services Employment & Reemployment Rights Act Genetic information –Genetic Information Nondiscrimination ActGenetic Information Nondiscrimination Act

10. What is prohibited? –Discrimination in hiring, firing, training, promotion, discipline or other workplace decisions based on race, color, gender, national origin, or religion Who must comply? –Employers, unions, and joint labor and management committees, employment agencies, most private employers, federal, state and local governments The Structure of Title VII

11. Title VII Provisions An employer cannot discriminate on the basis of: –Race –Color –Gender –Religion –National origin In making decisions regarding: –Hiring –Firing –Training –Discipline –Compensation –Benefits –Classification –Or other terms or conditions of employment

12. Who is covered? –Public and private employees, all levels and types of employees –U.S. citizens employed outside the U.S. for American employers and non-U.S. citizens working within the U.S.

13. Who is not covered? –Employees of employers with fewer than 15 employees –Employees whose employers are not engaged in interstate commerce –Employees of religious institutions –Members of Communist organizations –In addition, businesses operated on or around Native American Indian reservations may give preference to Native Americans

14. Title VII Claims –Nonfederal employees file with EEOC within 180 days of discriminatory eventEEOC –The person bringing an action is called a claimant or a charging party –Filing claims under Title VIIFiling claims under Title VII –Process for Title VII claimProcess for Title VII claim –Intent of Title VII is conciliation Title VII Claims –Nonfederal employees file with EEOC within 180 days of discriminatory eventEEOC –The person bringing an action is called a claimant or a charging party –Filing claims under Title VIIFiling claims under Title VII –Process for Title VII claimProcess for Title VII claim –Intent of Title VII is conciliation

15. Filing Claims under Title VII Who: Nonfederal employees who feel they have experienced employment discrimination. What: 99,922 charges filed with the EEOC in fiscal year 2010. When: Generally within 180 days of the discriminatory event for nonfederal employees. –Within 45 days for federal employees. Where: the nearest EEOC office.

16. EEOC claims in 2010: –35.9% – race –36.3% – retaliation (Title VII) –29.1% – gender –http://www.eeoc.gov/eeoc/statistics/enforceme nt/charges.cfmhttp://www.eeoc.gov/eeoc/statistics/enforceme nt/charges.cfm

17. –Title VII includes anti-retaliation provisions –EEOC offers mediation before investigation –If no reasonable cause is found for the discrimination, claimant is given a right-to-sue letter Judicial review –Courts must give EEOC cases de novo review (complete new look) –Many employers now using mandatory arbitration agreements which are not subject to judicial review

18. Jury trials permitted at the request of either party when compensatory and punitive damages are sought

19. FAIR EMPLOYMENT PRACTICE ACTS –706 agency – state agency that handles EEOC claims –FEPAsFEPAs

20. GEORGIA COMMISSION ON EQUAL OPPORTUNITY Complaint procedure A Better Chart

21. Remedies –Back pay of up to two years –Front pay for earnings a claimant would have received if not for the illegal discrimination –Retroactive seniority –Reinstatement –Injunctive relief –Attorney fees –Compensatory and punitive damages The Structure of Title VII

22. Compensatory and Punitive Damage Caps Number of employeesCap 15 to 100$50,000 101 to 200$100,000 201 to 500$200,000 More than 500$300,000

23. Disparate treatment – treating similarly situated employees differently because of prohibited factor –Bona fide occupational qualification (BFOQ) – intentional discrimination is reasonably necessary to employer’s business Theoretical Bases for Title VII Lawsuits

24. 24 Vincent v. Brewer Co. Facts: Vincent sued under Title VII, alleging that her employer fired her because of her gender. The District Court held that she could not show that she was as qualified as her male replacement, and entered summary judgment for employer. Issue: Does Plaintiff’s burden to prove a prima facie case require proof that she was as qualified as her male replacement? Held: No. Plaintiff has shown, as required, that she was qualified, but replaced by one outside her protected class. Summary Judgment is inappropriate, as she has raised genuine issues of material fact regarding the reasons for her firing.

25. 25 Laxton v. Gap, Inc.Laxton v. Gap, Inc. P. 76 Facts: After being hired but before starting work, an experienced manager reported her newly discovered pregnancy. Her boss became visibly angry. Six months later, though the store was successful, the woman was fired after a series of incidents. She sued under the Pregnancy Discrimination Act, and a jury found in her favor, but the District Court entered judgment against her, and she appealed. Issue: Was the evidence sufficient to support the jury’s verdict that the employer used pretext to discriminate against the manager? Held: Yes. Plaintiff offered ample evidence of pretext and the jury determined that the employer’s stated reasons for discharge were not believable. Judgment for Plaintiff reinstated.

26. Disparate impact – the result of policies that appear neutral, but have an adverse impact on a protected group –Many screening devices have disparate impact –Pre-employment interviews and employment applications may be basis for claims of disparate impact –Business necessity is a defense

27. 27 Elements of a Claim – Retaliation 1 1) Plaintiff must prove a prima facie case: –Plaintiff engaged in protected activity or opposed discrimination –Plaintiff suffered an adverse employment action –There is a causal link between the activity and the adverse employment action 2) If Plaintiff proves a prima facie case, then Defendant must prove a lawful, non- retaliatory motive for the decision.

28. 28 Elements of a Claim – Retaliation 2 3) If Defendant successfully defends the decision, Plaintiff may rebut Defendant’s claims by: –Providing evidence that sheds doubt on the credibility of Defendant’s stated motive; and/or –Providing other evidence that supports the claim that retaliation is the most likely explanation for the adverse action.

29. 29 Moore v. City of Philadelphia Facts: Plaintiffs, 3 white police officers with the City, complained about the treatment of black officers. Plaintiffs suffered harassment and material adverse employment actions. They sued under Title VII, but the District Court entered summary judgment for the City against them, stating that because they were white, they could not maintain an action for retaliation unless their claim was based on their own protected class status. Issue: Under Title VII, can a valid claim for retaliation be stated where the retaliation was not based on plaintiffs’ own protected class status? Held: Yes. Title VII bars retaliation against those who oppose treatment against others which violates Title VII, if they have suffered adverse employment actions.

30. 30 Other Discrimination Terms 1 Facially discriminatory policy or practice –But allegedly justified, based on a BFOQBFOQ “Reverse” discrimination –A misnomer typically meaning discrimination against a white male Pretext –A false reason given to justify a discriminatory employment decision

31. 31 Other Discrimination Terms 2 Mixed motives –Decisions based on partly legal, partly illegal motives Pattern or practice –Statistical evidence reveals discrimination occurring over time Harassment –A form of disparate treatment

32. CONSTITUTIONAL PROHIBITIONS AGAINST DISCRIMINATION Due Process and Equal Protection

33. Constitutional Checks on Governmental Power Equal Protection (14 th Amendment) –Neither the states nor the federal government may unfairly discriminate –Due Process and Equal Protection Scrutiny –Rational Basis Analysis –Strict Scrutiny Analysis

34. Strict Scrutiny Where there is a classification based on “suspect” classes: race, color, creed, national origin, gender (intermediate scrutiny) or a Fundamental Right is involved Government must show it has a compelling interest for the law. Law is presumed to be unconstitutional.

35. Rational (reasonable) basis Law is presumed constitutional Will be classified as unconstitutional only if there is “no rational basis” for the law. Does the classification really accomplish its purpose? (See Romer v. Evans, 517 U.S. 620 (1996)).

36. –Civil Rights Act of 1871 Section 1981 covers right to make and enforce contracts Section 1983 prohibits deprivation of rights by government employee Section 1985 – “Ku Klux Klan Act” –Title VII is used more than all of the other laws Only Title VII has EEOC who handles cases free of charge The Reconstruction Civil Rights Acts

37. 42 U.S.C. Section 1981 Equal rights under the law Section 1981 does not permit actions for racial discrimination during the performance of the contract, but only in making or enforcing the contract © 2007 The McGraw-Hill Companies, Inc. All rights reserved.

38. 42 U.S.C. Section 1983 Civil action for deprivation of rights Protects citizens from deprivation of their legal and constitutional rights, privileges, and immunities, under color of state law Neither the 14 th Amendment nor section 1983 may be used for discrimination by private employers © 2007 The McGraw-Hill Companies, Inc. All rights reserved.

39. 42 U.S.C. Section 1985 Conspiracy to interfere with Civil Rights―Preventing officer from performing duties Known as the “Ku Klux Klan Act” Addresses conspiracies to interfere with or deprive the civil rights of others © 2007 The McGraw-Hill Companies, Inc. All rights reserved.

40. Glenn v. Brumby, et al, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION, 2009 PART I The employee, who was identified as a male a birth, suffered from gender identity disorder (GID). Prior to undergoing gender transition surgery as a treatment for GID, the employee went to work in a feminine manner of dress and comportment and was fired. The decision to fire the employee pertained to her behavior, dress, and comportment in the workplace--all of which were doctor-recommended treatments for her GID.

41. Glenn, P.2 She alleged a violation of the Equal Protection Clause, and 42 U.S.C.A.§1983, based on Sexual discrimination (Which test?) And discrimination based on a medical condition (Which test?) The §1983 claim is dependent on the Equal Protection claim.

42. 42 What Would You Do? You are the VP of Human Resources; the Director of Human Resources reports to you. You have received a complaint from a Jewish employee in the IT department, who says that his manager has written him up for “trumped-up” charges in an effort to build a case for terminating him because of his religion, and that the HR Director is cooperating with the manager. What would you do?