2. Generally, what kind of conduct is prohibited by Title VII of the Civil Rights Act of 1964, as amended? Generally, what kind of conduct is prohibited by Title VII of the Civil Rights Act of 1964, as amended? What is the difference between disparate-treatment discrimination and disparate-impact discrimination?  What is the difference between disparate-treatment discrimination and disparate-impact discrimination?  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

3. What remedies are available under Title VII of the 1964 Civil Rights Act, as amended? What remedies are available under Title VII of the 1964 Civil Rights Act, as amended? What federal acts prohibit discrimination based on age and discrimination based on disability? What federal acts prohibit discrimination based on age and discrimination based on disability? What are three defenses to claims of employment discrimination? What are three defenses to claims of employment discrimination? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3

4. Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy. Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy. – Applies to employers involved with interstate commerce with 15 or more employees. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4

5. In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices. In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices. Equal Employment Opportunity Commission: monitors compliance with Title VII. Equal Employment Opportunity Commission: monitors compliance with Title VII. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5

6. Intentional and Unintentional Discrimination. Intentional and Unintentional Discrimination. – Intentional (Disparate-Treatment) Discrimination. Applicant must prove: She is member of a protected class; Applied, qualified and rejected for job; and Employer continued to seek applicants. Burden then shifts to employer who must articulate a legal reason for not hiring. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

7. Intentional and Unintentional Discrimination (cont’d). Intentional and Unintentional Discrimination (cont’d). – Unintentional (Disparate Impact) Discrimination. Occurs when a protected group of people is adversely affected by an employer’s practices, procedures, or tests, even though they do not appear to be discriminatory.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7

8. Intentional and Unintentional Discrimination (cont’d). Intentional and Unintentional Discrimination (cont’d). – Unintentional (Disparate Impact) Discrimination. Pool of Applicants Test: plaintiff shows percentage of the protected class in employer’s workforce does not reflect percentage in local labor market.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8

9. Intentional and Unintentional Discrimination (cont’d). Intentional and Unintentional Discrimination (cont’d). – Unintentional (Disparate Impact) Discrimination. Rate of Hiring: plaintiff compares selection rates of members of protected class with nonmembers in employer’s workforce. According to EEOC, less than 80% may show disparate impact. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9

10. Discrimination Based on Race, Color, and National Origin. Discrimination Based on Race, Color, and National Origin. – Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin. Policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10

11. Discrimination Based on Race, Color, and National Origin (cont’d). Discrimination Based on Race, Color, and National Origin (cont’d). – “Reverse” Discrimination: discrimination against majority group individuals, such as white males. Ricci v. DeStefano (2009) : Supreme Court held City of New Haven’s testing and promotion procedures were race-conscious and discriminatory against white firefighters, violating Title VII. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11

12. Discrimination Based on Race, Color, and National Origin (cont’d). Discrimination Based on Race, Color, and National Origin (cont’d). – Potential “Section 1981” Claims. Discrimination Based on Religion. Discrimination Based on Religion. – Employers must reasonably accommodate the sincerely held religious practices of its employees, unless to do so would cause undue hardship to employer’s business. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12

13. Discrimination Based on Gender. Discrimination Based on Gender. – Employers are prohibited from classifying jobs based on gender, unless employer can prove gender is essential to the job. Pregnancy Discrimination Act. Equal Pay Act (1963). Lilly Ledbetter Fair Pay Act (2009). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13

14. Constructive Discharge. Constructive Discharge. – Employer causes working conditions to be so intolerable that reasonable person would feel compelled to quit. An employee can be “constructively discharged” but still leave voluntarily. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14

15. Constructive Discharge (cont’d). Constructive Discharge (cont’d). – Proving Constructive Discharge. Plaintiff must present objective proof of intolerable working conditions, which employer knew about and failed to correct. Employee’s resignation must be a foreseeable result of working conditions. – Applies to all Title VII discrimination. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15

16. Sexual Harassment. Sexual Harassment. – The Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include prohibitions against sexual harassment. There are currently two forms of sexual harassment: Quid Pro Quo.  Hostile Work Environment.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16

17. Sexual Harassment (cont’d). Sexual Harassment (cont’d). – Quid pro quo: demands for sexual favors are demanded in return for job opportunities, promotions, salary, increases or other tangible benefits. – Hostile Work Environment: workplace is permeated with discriminatory intimidation, ridicule, insult so severe that working conditions are abusive to employee. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

18. Sexual Harassment (cont’d). Sexual Harassment (cont’d). – Harassment by Supervisors: For employer to be liable for a supervisor’s sexual harassment, a supervisor must have taken a tangible employment action against the employee. – Employer’s Affirmative Defense.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18

19. Sexual Harassment (cont’d). Sexual Harassment (cont’d). – The Ellerth / Faragher Affirmative Defense is based on two 1998 Supreme Court decisions. Defense has two elements: (1) Employer must have taken reasonable care to prevent and promptly correct any sexually harassing behavior, and  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19

20. Sexual Harassment (cont’d). Sexual Harassment (cont’d). – The Ellerth / Faragher Defense (cont’d). (2) Plaintiff-employee must have unreasonable failed to take advantage of preventative or corrective opportunities to avoid harm. If an employer can prove both elements, he will not be liable for supervisor’s harassment © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

21. Sexual Harassment (cont’d). Sexual Harassment (cont’d). – Retaliation by Employers against employees that complain about sexual harassment or other Title VII violations. – Harassment by Coworkers and Nonemployees. Employer generally liable only if employer knew or should have known and failed to take action.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

22. Sexual Harassment (cont’d). Sexual Harassment (cont’d). – Harassment by Coworkers and Nonemployees (cont’d). Notice to supervisor is sufficient under agency law. Employers may also be liable for harassment by non-employees. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22

23. Sexual Harassment (cont’d). Sexual Harassment (cont’d). – Same-Gender Harassment. In 1998, Supreme Court held in Oncale v. Sundowner Offshore Services that Title VII prohibitions against sexual harassment extended to same-sex harassment. – Proof of Same-Gender Harassment. Easier to prove when harasser is homosexual, but sexual orientation is not necessarily the same as “sex” (gender). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23

24. Online Harassment. Online Harassment. – Hostile work environment created using company chat, blogs, email. Employers can avoid liability with prompt remedial action. Employees may be discharged for using company computers to distribute offensive material to coworkers. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24

25. Remedies under Title VII. Remedies under Title VII. – Liability may be extensive. Plaintiff may receive: Reinstatement. Back Pay. – Retroactive Promotions; and – Damages. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25

26. The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers.  The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26

27. Procedures under the ADEA. Procedures under the ADEA. – Plaintiff must show discrimination was THE reason for adverse employment action. Mora v. Johnson Memorial Foundation, Inc. – CASE 30.1 Mora v. Johnson Memorial Foundation, Inc. (2010). What was the ‘disputed question of material fact’ the court referred to? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27

28. Procedures (cont’d). Procedures (cont’d). – To establish a prima facie case, the employee must provide that the discrimination was based on age bias. The bigger the age gap the more likely the bias. State Employees Not Covered by the ADEA. State Employees Not Covered by the ADEA. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28

29. The Americans with Disability Act (ADA) requires employers to offer “reasonable accommodation” to employees or applicants with a disability who are otherwise qualified for the job they hold or seek. The Americans with Disability Act (ADA) requires employers to offer “reasonable accommodation” to employees or applicants with a disability who are otherwise qualified for the job they hold or seek. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29

30. Procedures under the ADA. Procedures under the ADA. – To prevail plaintiff must show she: Has a “disability.” Is otherwise qualified for the employment in question; and Was excluded from employment solely because of the disability. – Plaintiff must first exhaust her claim through the EEOC process. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30

31. What is a Disability? What is a Disability? – ADA defines disability as: Physical or mental impairment that “substantially limits one or more of major life activities; or A record of such impairment; or Being regarded as having such an impairment.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31

32. What is a Disability? (cont’d) What is a Disability? (cont’d) – Supreme Court’s Narrow Definition. From 1999-2007, the Court made it harder for employees to establish a disability.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32

33. What is a Disability? (cont’d) What is a Disability? (cont’d) – 2008 Amendments Reverse Prior Supreme Court Cases. Rohr v. Salt River Project Agricultural Improvement and Power District CASE 30.2 Rohr v. Salt River Project Agricultural Improvement and Power District (2009). Diabetes is a disability if it significantly restricts eating. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 33

34. Reasonable Accommodation. Reasonable Accommodation. – Undue Hardship. If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. Examples: wheelchair ramps, flexible working hours, improved training materials.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 34

35. Reasonable Accommodation. Reasonable Accommodation. – Job Applications and Preemployment Physical Exams. Modifications to applications and selection process so those with disabilities can compete. Employers are restricted on pre-hiring questions and physical exams. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 35

36. Reasonable Accommodation. Reasonable Accommodation. – Substance Abusers: Only FORMER drug users completed or going through supervised drug rehabilitation programs qualify as “disabled.” Employers can fire an alcoholic is he poses substantial risk. – Health Insurance Plans: equal access to health care. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 36

37. Association Discrimination. Association Discrimination. – Protects individuals based on an identified disability of another person they are associated with. – To prevail, plaintiff must show she: (1) was qualified for the job, (2) was subjected to an adverse employment action, and (3) was known by her employer to have a relative or an associate with a disability.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 37

38. Association Discrimination (cont’d). Association Discrimination (cont’d). – CASE 30.3 Francin v. Mosby, Inc. (2008). What factors helped Francin’s claim of association discrimination? Hostile-Environment Claims under the ADA. Hostile-Environment Claims under the ADA. – Plaintiff must show defendant’s conduct was sufficiently severe that conditions of employer were altered. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 38

39. There are four basic types of defenses to employment discrimination claims.  There are four basic types of defenses to employment discrimination claims.  – Business Necessity. – Bona Fide Occupational Qualification. – Seniority Systems. – After-Acquired Evidence. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 39

40. Business Necessity. Business Necessity. – Requires the employer to demonstrate that a job qualification is reasonably necessary to the legitimate conduct of the employer’s business. – Business necessity is a defense to disparate impact discrimination. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 40

41. Bona Fide Occupational Qualification. Bona Fide Occupational Qualification. – BFOQ defense requires an employer to show that an particular skill is necessary for the performance of a particular job. – The BFOQ defense is used in cases of disparate treatment discrimination. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 41

42. Seniority Systems. Seniority Systems. – Conditions the distribution of job benefits on the length of time one has worked for an employer. – Can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 42

43. After-Acquired Evidence. After-Acquired Evidence. – Refers to evidence of misconduct, committed by an employee who is suing an employer for employment discrimination. Uncovered during the process of discovery conducted in preparation for a defense against the suit. Not an absolute defense for employer. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 43

44. Designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes. Designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes. Constitutionality of Affirmative Action Programs. Constitutionality of Affirmative Action Programs. – May violate 14 th Amendment. (Adarand Constructors case).  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 44

45. Constitutionality (cont’d). Constitutionality (cont’d). – Affirmative action program is constitutional only if it attempts to remedy past discrimination and does not make use of quotas or preferences. Affirmative Action in Schools. Affirmative Action in Schools. – Generally, program that automatically awards minority students specified number of points is unconstitutional. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 45