1. Copyright © 2004 by Prentice-Hall. All rights reserved. PowerPoint Slides to Accompany BUSINESS LAW E-Commerce and Digital Law International Law and Ethics 5 th Edition by Henry R. Cheeseman Slides developed by Les Wiletzky Wiletzky and Associates, Puyallup, WA Chapter 41 Equal Opportunity in Employment Chapter 41 Equal Opportunity in Employment

2. 41 - 2Copyright © 2004 by Prentice-Hall. All rights reserved. Equal Opportunity in Employment The right of all employees and job applicants: 1. To be treated without discrimination, and 2. To be able to sue employers if they are discriminated against.

3. 41 - 3Copyright © 2004 by Prentice-Hall. All rights reserved. Equal Employment Opportunity Commission (EEOC)  The federal administrative agency responsible for enforcing most federal anti-discrimination laws.  The EEOC is empowered to: Conduct investigations Conduct investigations Interpret the statutes Interpret the statutes Encourage conciliation between employees and employers Encourage conciliation between employees and employers Bring suit to enforce the law Bring suit to enforce the law

4. 41 - 4Copyright © 2004 by Prentice-Hall. All rights reserved. Title VII of the Civil Rights Act of 1964  Intended to eliminate job discrimination based on five protected classes: Race Race Color Color Religion Religion Sex Sex National Origin National Origin

5. 41 - 5Copyright © 2004 by Prentice-Hall. All rights reserved. Scope of Coverage of Title VII  Title VII applies to: Employers with 15 or more employees Employers with 15 or more employees All employment agencies All employment agencies Labor unions with 15 or more members Labor unions with 15 or more members State and local governments and their agencies State and local governments and their agencies Most federal government employment Most federal government employment

6. 41 - 6Copyright © 2004 by Prentice-Hall. All rights reserved. Scope of Coverage of Title VII (continued)  Title VII applies to any term, condition, or privilege of employment including, but not limited to: Hiring and firing Hiring and firing Work rules Work rules Promotion and demotion Promotion and demotion Payment of compensation and benefits Payment of compensation and benefits Availability of job training opportunities Availability of job training opportunities

7. 41 - 7Copyright © 2004 by Prentice-Hall. All rights reserved. Forms of Title VII Actions Disparate Treatment Discrimination  Occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion. Disparate Treatment Discrimination  Occurs when an employer discriminates against a specific individual because of his or her race, color, national origin, sex, or religion. Disparate Impact Discrimination  Occurs when an employer discriminates against an entire protected class.  Often, this is proven through statistical data about the employer’s employment practices. Disparate Impact Discrimination  Occurs when an employer discriminates against an entire protected class.  Often, this is proven through statistical data about the employer’s employment practices.

8. 41 - 8Copyright © 2004 by Prentice-Hall. All rights reserved. Procedure for Bringing a Title VII Action  Private complainant must file a complaint with the EEOC.  The EEOC is given the opportunity to sue the employer on the complainant’s behalf.  If the EEOC chooses not to bring suit, it will issue a right to sue letter to the complainant.  Complainant now has the right to sue the employer.

9. 41 - 9Copyright © 2004 by Prentice-Hall. All rights reserved. Race, Color, and National Origin Discrimination  Title VII was primarily enacted to prohibit employment discrimination based on race, color, and national origin. Race: refers to broad categories such as Black, Asian, Caucasian, and Native American Race: refers to broad categories such as Black, Asian, Caucasian, and Native American Color: refers to the color of a person’s skin Color: refers to the color of a person’s skin National Origin: refers to the country of a person’s ancestors or cultural characteristics National Origin: refers to the country of a person’s ancestors or cultural characteristics

10. 41 - 10Copyright © 2004 by Prentice-Hall. All rights reserved. Sex Discrimination  Discrimination against a person solely because of his or her gender. Applies equally to men and women. Applies equally to men and women. Overwhelming majority of Title VII sex discrimination cases are brought by women. Overwhelming majority of Title VII sex discrimination cases are brought by women.

11. 41 - 11Copyright © 2004 by Prentice-Hall. All rights reserved. Pregnancy Discrimination Act (1978)  Amendment to Title VII.  Forbids employment discrimination because of “pregnancy, childbirth, or related medical conditions.”  Work rules that prohibit the hiring of pregnant women violate Title VII.

12. 41 - 12Copyright © 2004 by Prentice-Hall. All rights reserved. Sexual Harassment  Refusing to hire or promote someone unless he or she has sex with the manager or supervisor is sex discrimination that violates Title VII.  Other forms of conduct, such as lewd remarks, touching, intimidation, posting pinups, and other verbal or physical conduct of a sexual nature, constitute sexual harassment and violate Title VII.

13. 41 - 13Copyright © 2004 by Prentice-Hall. All rights reserved. Sexual Harassment (continued)  Title VII prohibits sexual harassment that causes a hostile work environment.  The circumstances that create a hostile work environment include: Frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

14. 41 - 14Copyright © 2004 by Prentice-Hall. All rights reserved. The Reasonable Woman Standard  In most cases, the courts use a “reasonable person” standard to determine whether certain conduct violates the norms of society.  For cases involving sexual harassment, several courts have adopted the “reasonable woman” standard. i.e., evaluating the severity and pervasiveness of sexual harassment from the perspective of the victim. i.e., evaluating the severity and pervasiveness of sexual harassment from the perspective of the victim.

15. 41 - 15Copyright © 2004 by Prentice-Hall. All rights reserved. Same-Sex Discrimination  The U.S. Supreme Court has held that same- sex sexual harassment is actionable under Title VII.  State and local laws also prohibit this form of discrimination.

16. 41 - 16Copyright © 2004 by Prentice-Hall. All rights reserved. E-Mail’s Role in Hostile Work Environment Lawsuits  E-mail has increased the exposure of businesses to sexual and racial harassment. e.g., In 1995, Chevron Corporation paid $2.2 million to settle sexual harassment charges brought by female employees for offensive e- mail messages sent by male coworkers. e.g., In 1995, Chevron Corporation paid $2.2 million to settle sexual harassment charges brought by female employees for offensive e- mail messages sent by male coworkers. The employees had signed a complaint letter about the e-mail harassment. The employees had signed a complaint letter about the e-mail harassment. The company ignored the complaint. The company ignored the complaint.

17. 41 - 17Copyright © 2004 by Prentice-Hall. All rights reserved. E-Mail’s Role in Hostile Work Environment Lawsuits (continued)  E-mail often sets the social tone of an office and has been permitted to be slightly ribald.  At some point e-mail conduct becomes impermissible and crosses the line to actionable sexual or racial harassment.  E-mail differs from many other incidents of harassment because it is subtle and insidious.

18. 41 - 18Copyright © 2004 by Prentice-Hall. All rights reserved. E-Mail’s Role in Hostile Work Environment Lawsuits (continued)  The standard of whether e-mail creates an illegal hostile work environment is the same as that for measuring harassment in any other context: The offensive conduct must be severe, and The offensive conduct must be severe, and Cannot consist of isolated or trivial remarks and incidents. Cannot consist of isolated or trivial remarks and incidents.

19. 41 - 19Copyright © 2004 by Prentice-Hall. All rights reserved. Employers may prove an affirmative defense in some sexual harassment cases:  The Supreme Court has determined that an employer may raise an affirmative defense against liability or damages by proving the following two elements: 1. The employer exercised reasonable care to prevent and correct promptly any sexual-harassing behavior. 2. The plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm.

20. 41 - 20Copyright © 2004 by Prentice-Hall. All rights reserved. Religious Discrimination  Title VII prohibits employment discrimination based on a person’s religion or religious practices.  Under Title VII, an employer is under a duty to reasonably accommodate an employee’s religious practices, observances, or beliefs if it does not cause an undue hardship on the employer.

21. 41 - 21Copyright © 2004 by Prentice-Hall. All rights reserved. Defenses to A Title VII Action Merit Seniority Bona Fide Occupational Qualification (BFOQ)

22. 41 - 22Copyright © 2004 by Prentice-Hall. All rights reserved. Bona Fide Occupational Qualification (BFOQ)  Employment discrimination based on a protected class (other than race or color) is lawful if it is: Job related, and a Job related, and a Business necessity Business necessity  This exception is narrowly interpreted by the courts.

23. 41 - 23Copyright © 2004 by Prentice-Hall. All rights reserved. International Reach of U.S. Anti- discrimination Laws  Civil Rights Act (1991) expressly protects U.S. citizens employed in a foreign country by U.S.-controlled employers.  Foreign operations not controlled by U.S. employers are not covered.  The law contains an express exception that protects U.S.-controlled employers from conflicting foreign laws.

24. 41 - 24Copyright © 2004 by Prentice-Hall. All rights reserved. Equal Pay Act of 1963  Protects both sexes from pay discrimination based on sex.  The act prohibits disparity in pay for jobs that require: Equal skill Equal skill Equal effort Equal effort Equal responsibility Equal responsibility Similar working conditions Similar working conditions

25. 41 - 25Copyright © 2004 by Prentice-Hall. All rights reserved. Criteria That Justify a Differential in Wages  The Equal Pay Act expressly provides four criteria that justify a differential in wages: Seniority Seniority Merit Merit Quantity or quality of product Quantity or quality of product Any factor other than sex Any factor other than sex  The employer bears the burden of proving these defenses.

26. 41 - 26Copyright © 2004 by Prentice-Hall. All rights reserved. Age Discrimination in Employment Act (ADEA) of 1967  Prohibits age discrimination in all employment decisions, including: Hiring Hiring Promotions Promotions Payment of compensation Payment of compensation Other terms and conditions of employment Other terms and conditions of employment  The Older Workers Benefit Protection Act (OWBPA) amended ADEA to prohibit age discrimination with regard to employee benefits.

27. 41 - 27Copyright © 2004 by Prentice-Hall. All rights reserved. Age Discrimination in Employment Act (ADEA) of 1967 (continued)  ADEA applies to employees who are 40 years of age and older.  Covered employers cannot establish mandatory retirement ages for their employees.  ADEA is administered by the EEOC.

28. 41 - 28Copyright © 2004 by Prentice-Hall. All rights reserved. Americans with Disabilities Act (ADA) of 1990  The ADA imposes on employers and providers of public transportation, telecommunications, and public accommodations to accommodate individuals with disabilities.  Title I of the ADA prohibits employment discrimination against qualified individuals with disabilities.

29. 41 - 29Copyright © 2004 by Prentice-Hall. All rights reserved. Title I of the ADA requires an employer to make reasonable accommodations to individuals with disabilities that do not cause undue hardship to the employer.

30. 41 - 30Copyright © 2004 by Prentice-Hall. All rights reserved. Reasonable Accommodation Under ADA  Reasonable accommodations may include: Making facilities readily accessible Making facilities readily accessible Providing part-time or modified work schedules Providing part-time or modified work schedules Acquiring equipment or devices Acquiring equipment or devices Modifying examination and training materials Modifying examination and training materials Providing qualified readers or interpreters Providing qualified readers or interpreters

31. 41 - 31Copyright © 2004 by Prentice-Hall. All rights reserved. Qualified Individual with a Disability  A person who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds.

32. 41 - 32Copyright © 2004 by Prentice-Hall. All rights reserved. Qualified Individual with a Disability (continued) A disabled person is someone who: 1. Has a physical or mental impairment that substantially limits one or more of his or her major life activities, 2. Has a record of such impairment, or 3. Is regarded as having such impairment.

33. 41 - 33Copyright © 2004 by Prentice-Hall. All rights reserved. Forbidden Conduct Under Title I of ADA  Employers are forbidden from asking a job applicant about the existence, nature, and severity of a disability.  Pre-employment medical examinations are forbidden before a job offer.

34. 41 - 34Copyright © 2004 by Prentice-Hall. All rights reserved. Affirmative Action  Policy that provides that certain job preferences will be given to minority or other protected class applicants when an employer makes an employment decision.  Key issues: Reverse discrimination Reverse discrimination Race norming Race norming

35. 41 - 35Copyright © 2004 by Prentice-Hall. All rights reserved. State and Local Government Anti- discrimination Laws  Many state and local governments have adopted laws that prevent discrimination in employment. Usually include classes protected by federal equal opportunity laws Usually include classes protected by federal equal opportunity laws Also include classes of persons not protected by federal laws (e.g., homosexuals) Also include classes of persons not protected by federal laws (e.g., homosexuals)