Chapter 33 Equal Opportunity in Employment

1. Chapter 33Equal Opportunity in Employment © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

2. Equal Opportunity in Employment • The right of all employees and job applicants: • To be treated without discrimination, and • To be able to sue employers if they are discriminated against. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

3. Equal Employment Opportunity Commission (EEOC) • The federal administrative agency responsible for enforcing most federal anti-discrimination laws. • The EEOC is empowered to: • Conduct investigations • Interpret the statutes • Encourage conciliation between employees and employers • Bring suit to enforce the law © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

4. Title VII of the Civil Rights Act of 1964 • Intended to eliminate job discrimination based on five protected classes: • Race • Color • Religion • Sex • National Origin © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

5. Scope of Coverage of Title VII • Title VII applies to: • Employers with 15 or more employees • All employment agencies • Labor unions with 15 or more members • State and local governments and their agencies • Most federal government employment © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

6. 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 • Work rules • Promotion and demotion • Payment of compensation and benefits • Availability of job training opportunities © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

7. 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 Forms of Title VII Actions © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

8. 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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

9. Remedies for Violations of Title VII • A successful plaintiff in a Title VII action can recover back pay and reasonable attorneys’ fees. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

10. 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 • Color: refers to the color of a person’s skin • National Origin: refers to the country of a person’s ancestors or cultural characteristics © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

11. Sex Discrimination • Discrimination against a person solely because of his or her gender. • Applies equally to men and women. • Overwhelming majority of Title VII sex discrimination cases are brought by women. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

12. 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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

13. 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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

14. 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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

15. 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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

16. Defenses to A Title VII Action Merit Seniority Bona Fide Occupational Qualification (BFOQ) © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

17. 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 • Business necessity • This exception is narrowly interpreted by the courts. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

18. Civil Rights Act of 1866 • Enacted after the Civil War that says all persons “have the same right to make and enforce contracts as is enjoyed by white persons”; prohibits racial and national origin employment discrimination. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

19. Equal Pay Act • Protects both sexes from pay discrimination based on sex. • The act prohibits disparity in pay for jobs that require: • Equal skill • Equal effort • Equal responsibility • Similar working conditions © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

20. Criteria That Justify a Differential in Wages • The Equal Pay Act expressly provides four criteria that justify a differential in wages: • Seniority • Merit • Quantity or quality of product • Any factor other than sex • The employer bears the burden of proving these defenses. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

21. Age Discrimination in Employment Act • Prohibits age discrimination in all employment decisions, including: • Hiring • Promotions • Payment of compensation • Other terms and conditions of employment • The Older Workers Benefit Protection Act (OWBPA) amended ADEA to prohibit age discrimination with regard to employee benefits. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

22. Age Discrimination in Employment Act (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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

23. Americans with Disabilities Act • 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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

24. Title I of the ADArequires an employer to makereasonable accommodationsto individuals with disabilities that do not causeundue hardshipto the employer. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

25. Reasonable Accommodation Under ADA • Reasonable accommodations may include: • Making facilities readily accessible • Providing part-time or modified work schedules • Acquiring equipment or devices • Modifying examination and training materials • Providing qualified readers or interpreters © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

26. 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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

27. Qualified Individual with a Disability(continued) A disabled person is someone who: • Has a physical or mental impairment that substantially limits one or more of his or her major life activities, • Has a record of such impairment, or • Is regarded as having such impairment. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

28. Forbidden Conduct • 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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

29. Procedure and Remedies • Aggrieved person must first file charge with EEOC • EEOC may choose to take action • EEOC may permit individual to pursue private action • Relief • Injunction • Reinstatement with back pay • attorney’s’ fees • Compensatory and punitive damages © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

30. 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 • Race norming © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

31. Reverse Discrimination • Title VII protects members of majority class • Affirmative action plans may not have preestablished numbers of quotas • Majority class members may sue • May recover damages • Other remedies © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

32. 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 • Also include classes of persons not protected by federal laws (e.g., homosexuals) © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

33. 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. © 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman