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Chapter 20 Equal Opportunity in Employment

PowerPoint Slides to Accompany ESSENTIALS OF BUSINESS AND ONLINE COMMERCE LAW 1 st Edition by Henry R. Cheeseman. Chapter 20 Equal Opportunity in Employment. Equal Opportunity in Employment. The right of all employees and job applicants: To be treated without discrimination, and

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Chapter 20 Equal Opportunity in Employment

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  1. PowerPoint Slides to AccompanyESSENTIALS OF BUSINESS ANDONLINE COMMERCE LAW1st Editionby Henry R. Cheeseman Chapter 20 Equal Opportunity in Employment Slides developed by Les Wiletzky

  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

  3. Equal Employment Opportunity Commission (EEOC) • The federal administrative agency responsible for enforcing most federal antidiscrimination laws • The EEOC is empowered to: • Conduct investigations • Interpret the statutes • Encourage conciliation between employees and employers • Bring suit to enforce the law

  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

  5. Scope of Coverage of Title VII (1 of 2) • 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 • Indian tribes and tax-exempt private clubs are expressly excluded from coverage

  6. Scope of Coverage of Title VII (2 of 2) • 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

  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

  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

  9. Remedies for Violations of Title VII • A successful plaintiff in a Title VII action can recover back pay and reasonable attorneys’ fees • The courts also have broad authority to grant equitable remedies • A court can award punitive damages against an employer in cases involving an employer’s malice or reckless indifference to federally protected rights

  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

  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

  12. 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

  13. Sexual Harassment (1 of 2) • 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

  14. Sexual Harassment (2 of 2) • 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.

  15. 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.

  16. Same-Sex Discrimination • The U.S. Supreme Court has held that same-sex sexual harassment and discrimination violate Title VII • Many state and local laws also prohibit this form of discrimination and harassment in the workplace

  17. Affirmative Defense in Sexual Harassment Cases • The Supreme Court has determined that an employer may raise an affirmative defense against liability or damages by proving two elements: • The employer exercised reasonable care to prevent and correct promptly any sexual-harassing behavior • The plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

  18. 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

  19. Defenses to a Title VII Action: Merit • Employers can select or promote employees based on merit • Merit decisions are often based on work, educational experience, and professionally developed ability tests • To be lawful under Title VII, the requirement must be job related

  20. Defenses to a Title VII Action: Seniority • An employer may maintain a seniority system that rewards long-term employees • e.g., higher wages, fringe benefits, and other preferential treatment • Such systems are lawful if they are not the result of intentional discrimination

  21. Defenses to a Title VII Action: 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

  22. Civil Rights Act of 1866 • Section 1981 of the Civil Rights Act of 1866 expressly prohibits racial discrimination • It has also been held to forbid discrimination based on national origin

  23. 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 effort • Equal responsibility • Similar working conditions

  24. 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

  25. Age Discrimination in Employment Act (ADEA) of 1967 (1 of 2) • 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

  26. Age Discrimination in Employment Act (ADEA) of 1967 (2 of 2) • 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

  27. 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

  28. Title I of the ADArequires an employer to makereasonable accommodationsto individuals with disabilities that do not causeundue hardshipto the employer.

  29. 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

  30. Qualified Individual with a Disability(1 of 2) • A person who, with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds

  31. Qualified Individual with a Disability(2 of 2) 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

  32. 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

  33. Procedure and Remedies Under Title I of ADA • An aggrieved individual must file a charge with the EEOC • EEOC may take action against the employer, or • Permit the individual to pursue a private cause of action • Relief can take the form of: • an injunction • hiring or reinstatement (with back pay) • payment of attorneys’ fees • recovery of compensatory and punitive damages

  34. 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: • Affirmative action plans • Reverse discrimination • Race norming

  35. 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

  36. International Reach of U.S. Anti-discrimination Laws • Civil Rights Act (1991) protects U.S. citizens (but not foreign nationals) 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

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