Understanding Employment Discrimination Laws

1. What is Discrimination? First question, is all discrimination illegal? Answer: No.

2. Employment at Will Doctrine • Whose will? • In general,employers are free to hire and fire, in other words, no reasons are needed. • Good cause, no cause, bad cause

3. Who are “at will” employees? • Essentially anyone without a written contract • Best way to deal with concept of discrimination is in terms of exceptions to the at-will doctrine: • Protected classes of employees race, color, national origin, religion, sex, pregnancy, disability, age • Protected types of activities harassment, medical leave, concerted activities (organizing)

4. Hiring Discrimination • Failure to hire • Non-valid employment tests • Discriminatory pre-hiring ads • Discriminatory Referrals (hiring halls)

5. Discriminatory Conditions of Employment • Wages and benefits • Promotion • Pay raises • Performance reviews • Work assignments • Leaves of absence • Seniority • Training opportunities

6. Dismissals • Layoffs • Post-employment references • Constructive discharge cases

7. Other Issues • Affirmative action (voluntary remedies for effects of past disc.) • Sharing burden for past discrimination • Whistleblowing protection

8. Americans with Disabilities Act • Discrimination on basis of physical or mental disability • Asking applicants about past or current medical conditions • Pre-employment medical exams • Creating or maintaining workplaces with substantial physical barriers

9. Statutory standards that require interpretation: • Reasonable accommodation • Qualified workers

10. Who is Disabled?Very Broad Definitions • Substantial limits on major life activities (HIV) • Record of impairment • Regarded as having an impairment

11. One way to resolve these issues is to look at job descriptions, the functional analyses of job components. Essential function questions: • Are employees in this position required to do this function? • Does position exist to perform the function? • How many people are available to do the function? • How much expertise is required? • How much time is spent performing the function?

12. Undue Hardship Considerations • Nature and cost of accommodation • Employer’s financial resources • Nature of business • Accommodation costs already incurred

13. Activism • Analyze job and write down essential functions • List precisely what job-related limitations imposed by condition • Note how limitations can be overcome by accommodations • Identify potential accommodations and assess their effectiveness • Document all aspects including cost and availability accomodation