Employment Law for Human Resource Practice

1. Employment Law forHuman Resource Practice Chapter 3 Overview of Employment Discrimination

2. The Continuing Reality of Employment Discrimination Progress has been made against discrimination since the passage of Title VII. While overt discrimination is less frequent, more subtle forms of discrimination continue. Plaintiff may prove discrimination by direct or circumstantial evidence, but Plaintiff has the burden of proof Discrimination is inherently difficult to prove.

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

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

5. Other Anti-Discrimination Provisions US Constitution: US Code Section 1981 & Section 1983 14th Amendment For federal contractors: Executive Order 11246 States, cities & counties also have statutory, constitutional and regulatory antidiscrimination provisions

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

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

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

9. Protected Classes, State Some protected classes are recognized under state or city law, but not federal law: Marital status Sexual orientation Gender identity Tobacco/alcohol use

10. Types of Discrimination Disparate treatment Intentional, unequal treatment Adverse (Disparate) impact Facially neutral policy has discriminatory impact Failure to reasonably accommodate Applies to religion, disability only (See Chapter 10) Retaliation To punish based on employee’s exercise of his legal rights

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

12. Showing Disparate Treatment – Facially Discriminatory Practice 12

13. 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

14. Elements of a Claim –Disparate Treatment – Pretext 1 1) Plaintiff must prove aprima faciecase: Plaintiff’s relevant protected class characteristic Applied for the employment opportunity The employment opportunity was available Plaintiff was qualified for it Plaintiff was denied the opportunity Defendant-Employer continued to interview, or hired one with contrasting protected class characteristics

15. Elements of a Claim –Disparate Treatment – Pretext 2 2) If Plaintiff proves a prima facie case, then Defendant must produce evidence of lawful motive for the employment decision. 3) If Defendant produces such evidence, Plaintiff may rebut by: Providing evidence that casts doubt on Defendant’s claimed motive, and/or Providing other evidence supporting the claim of discriminatory motive

16. Jones v. Oklahoma City Public Schools Facts: Jones was demoted and suffered a reduction in pay after several questions regarding when she would retire. Although she was told her duties would be absorbed by others, a new position was created with “strikingly similar” duties. Jones sued, alleging age discrimination. Summary Judgment was entered against her and she appealed. Issue: If Plaintiff proves a prima facie case of discrimination and shows the Defendant employer’s given reasons to be pretext, must she also provide further proof of discrimination to avoid summary judgment against her? Held: Once Plaintiff has proven a prima facie case of age discrimination, and shown the employer’s proffered reasons to be pretext, she need not submit additional evidence of discrimination. Summary

17. Elements of a Claim – Adverse Impact 1 1) Plaintiff must prove a prima facie case: A “neutral” practice disproportionately limits the employment opportunities of a protected class of which plaintiff is a member. The difference in outcomes across protected class groups is large enough that it is unlikely to exist by chance.

18. Elements of a Claim –Adverse Impact 2 2) If Plaintiff proves a prima facie case, then Defendant must prove that the challenged practice is “job related and consistent with business necessity.” In age discrimination cases, the employer must show that the practice is a reasonable factor other than age. 3) If Defendant successfully defends the practice, Plaintiff may still prevail by showing that a feasible, less discriminatory, practice exists, but the employer refuses to adopt it. Does not apply in age discrimination cases.

19. Showing Adverse Impact – Overview

20. 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.

21. 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.

22. Collazo v. Bristol-Myers Squibb • Facts: Collazo sued his former employer alleging he was fired in retaliation for his attempts to assist another employee who was being sexually harassed. The employer contended that Collazo did not verbally protest, and that no sexual harassment had occurred. Summary judgment was entered against him, and he appealed. • Issues: Is a Title VII violation required to establish a claim for retaliation? Must an employee verbally oppose the harassment of another, or is conduct in opposition sufficient? • Held: A claim for retaliation may be established where employee has a good faith reasonable belief of unlawful activities and opposes them by conduct. Summary