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Transcript of Chapter 19 Employment Discrimination. Generally, what kind of conduct is prohibited by Title VII of...
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Chapter 19Employment
Discrimination
Chapter 19Employment
Discrimination
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Generally, what kind of conduct is prohibited by Title VII of the Civil Rights Act?
What is the difference between disparate-treatment discrimination and disparate-impact discrimination?
What remedies are available under Title VII? What are three defense to claims of
employment discrimination?
Generally, what kind of conduct is prohibited by Title VII of the Civil Rights Act?
What is the difference between disparate-treatment discrimination and disparate-impact discrimination?
What remedies are available under Title VII? What are three defense to claims of
employment discrimination?
Learning ObjectivesLearning ObjectivesLearning ObjectivesLearning Objectives
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IntroductionIntroduction
The most important federal anti-discrimination laws are:Title VII of the Civil Rights Act of 1964.The Age Discrimination in Employment
Act.The Equal Pay Act.The Americans with Disabilities Act.
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Title VII Of The Civil Rights Act of
1964
Title VII Of The Civil Rights Act of
1964Title VII prohibits discrimination in
employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy.
In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices.
Enforcement of Title VII by EEOC.
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Disparate Treatment vs. Impact Discrimination
Disparate Treatment vs. Impact Discrimination
“Disparate-Treatment” Discrimination. For prima facie case, applicant must prove:She is member of a protected class;Applied, qualified and rejected for job; andEmployer continued to seek applicants.
“Disparate Impact” Discrimination.No-protected applicant sues Employer who tries
to integrate members of protected classes into workplace.
“Disparate-Treatment” Discrimination. For prima facie case, applicant must prove:She is member of a protected class;Applied, qualified and rejected for job; andEmployer continued to seek applicants.
“Disparate Impact” Discrimination.No-protected applicant sues Employer who tries
to integrate members of protected classes into workplace.
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Race, Color and National Origin
Race, Color and National Origin
Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin.
Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.
Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin.
Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.
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ReligionReligion
Employers must “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue hardship to employer’s business.
Employers must “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue hardship to employer’s business.
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Discrimination Based on GenderDiscrimination
Based on Gender Title VII prohibits sex discrimination in
the work place. Employers are prohibited from classifying
jobs as male or female or from advertising such, unless employer can prove gender is essential to the job.
Plaintiff must show gender was determining factor in hiring, firing or lack of promotion.
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Gender DiscriminationGender Discrimination
Two types of sex discrimination:Differential treatment.Sexual harassment, which itself,
exists in two varieties:• Hostile Work Environment.
• Quid Pro Quo.
Two types of sex discrimination:Differential treatment.Sexual harassment, which itself,
exists in two varieties:• Hostile Work Environment.
• Quid Pro Quo.
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Sexual HarassmentSexual Harassment
U.S. Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include a prohibition against sexual harassment.
There are currently two forms of recognized sexual harassment:Quid Pro QuoHostile Work Environment.
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Hostile Work EnvironmentHostile Work EnvironmentHostile environment occurs when
workplace is “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment.
The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.
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Harassment by Supervisors
Harassment by Supervisors
Quid Pro Quo harassment involves the demands for sexual favors by a supervisor from a subordinate, in exchange for some workplace benefit.See Faragher v. City of Boca Raton (1998) and
Burlington Industries v. Ellerth (1998).Under certain conditions, an employer may
be liable for the quid pro quo harassment committed by its supervisory employees.
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Harassment by Co-Workers
Harassment by Co-Workers
Employer generally liable only if employer knew or should have known and failed to take action. Employee notice to supervisor is notice to
Employer under agency law.Employers may also be liable for
harassment by non-employees.Same-sex harassment also violates Title
VII.
Employer generally liable only if employer knew or should have known and failed to take action. Employee notice to supervisor is notice to
Employer under agency law.Employers may also be liable for
harassment by non-employees.Same-sex harassment also violates Title
VII.
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Online HarassmentOnline Harassment
Company email systemsCompany chatroomsPosting sexually explicit images on
company computer systems, screen savers, etc.
Employees will generally not be liable if prompt action taken.
Company email systemsCompany chatroomsPosting sexually explicit images on
company computer systems, screen savers, etc.
Employees will generally not be liable if prompt action taken.
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Remedies under Title VIIRemedies under Title VII
Liability may be extensive. Plaintiff may receive:Reinstatement.Back Pay.Retroactive Promotions; andDamages.
Liability may be extensive. Plaintiff may receive:Reinstatement.Back Pay.Retroactive Promotions; andDamages.
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Equal Pay Act of 1963Equal Pay Act of 1963
The EPA amends the Fair Labor Standards Act to prohibit gender-based discrimination in wages paid for similar jobs performed under similar conditions.
Pay differentials for jobs with the same or similar jobs can be justified on the basis of seniority, merit, a piece-work system, or any factor other than gender.
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Discrimination based on Age
Discrimination based on Age
The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers.
Plaintiff must show: He was member of protected age group Was qualified for the position from which he was
discharged, and Was discharged under circumstances that inferred
discrimination
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Discrimination based on “Disability” (ADA)Discrimination based on “Disability” (ADA)
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 duty of reasonable accommodation ends at the point at where it becomes an undue hardship.
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ADAADA
To prevail on a claim under ADA, plaintiff must show she:Has a “disability.”Is otherwise qualified for the employment in
question; andWas excluded from employment solely because
of the disability.Plaintiff must first exhaust
administrative relief with EEOC.
To prevail on a claim under ADA, plaintiff must show she:Has a “disability.”Is otherwise qualified for the employment in
question; andWas excluded from employment solely because
of the disability.Plaintiff must first exhaust
administrative relief with EEOC.
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ADA: What is a “Disability”?
ADA: 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.
Determination is decided on a case-by-case basis.
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.
Determination is decided on a case-by-case basis.
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ADA: “Reasonable Accommodation”
ADA: “Reasonable Accommodation”
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. Job Applications and Pre-Employment
Physical Exams.
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. Job Applications and Pre-Employment
Physical Exams.
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Defenses to Claims of Discrimination
Defenses to Claims of Discrimination
There are four basic types of defenses to employment discrimination claims.Business necessity.Bona fide occupational qualification.Seniority Systems.After-acquired evidence of employee
misconduct.
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Business NecessityBusiness Necessity
The business necessity defense requires the employer to demonstrate that the imposition of a job qualification is reasonably necessary to the legitimate conduct of the employer’s business.
Business necessity is a defense to disparate impact discrimination.
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Bona Fide Occupational Qualification
Bona Fide Occupational Qualification
The 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.
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Seniority SystemsSeniority Systems
A seniority system is one that conditions the distribution of job benefits on the length of time one has worked for an employer.
A seniority system can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws.
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After-Acquired EvidenceAfter-Acquired EvidenceAfter-acquired evidence refers to evidence
of misconduct, committed by an employee who is suing an employer for employment discrimination, that is uncovered during the process of discovery conducted in preparation for a defense against the suit.
While it may serve to limit employee recovery, it does not act as an absolute defense for the employer.
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Affirmative ActionAffirmative Action
Affirmative action programs go one step beyond non-discrimination: they are designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes.
AA has led to “reverse discrimination” cases which violate equal protection.University of California v. Bakke (1978).Adarand Constructors v. Pena (1995).
Affirmative action programs go one step beyond non-discrimination: they are designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes.
AA has led to “reverse discrimination” cases which violate equal protection.University of California v. Bakke (1978).Adarand Constructors v. Pena (1995).
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The Hopwood CaseThe Hopwood CaseIn 1996, two white law school applicants sued the
University of Texas at Austin when they were denied admission. The Fifth Circuit opined:“Diversity fosters, rather than minimizes, the use of
race. It treats minorities as a group, rather than as individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hatred.” Hopwood v. State of Texas, 84 F.3d 720 (5th Cir. 1996).
The U.S. Supreme Court denied certiorari and so the opinion stands.
In 1996, two white law school applicants sued the University of Texas at Austin when they were denied admission. The Fifth Circuit opined:“Diversity fosters, rather than minimizes, the use of
race. It treats minorities as a group, rather than as individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hatred.” Hopwood v. State of Texas, 84 F.3d 720 (5th Cir. 1996).
The U.S. Supreme Court denied certiorari and so the opinion stands.