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Chapter 20 Employment Discrimination

Chapter 20 Employment Discrimination. History of Employment Discrimination Law. No Protection Under Common Law At will employment doctrine Civil Rights Act of 1866 Equal Pay Act of 1963 Title VII of the Civil Rights Act of 1964

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Chapter 20 Employment Discrimination

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  1. Chapter 20Employment Discrimination

  2. History of Employment Discrimination Law • No Protection Under Common Law • At will employment doctrine • Civil Rights Act of 1866 • Equal Pay Act of 1963 • Title VII of the Civil Rights Act of 1964 • Prohibited discrimination in employment on the basis of race, color, religion, sex, or national origin (Amended by the Equal Employment Opportunity Act of 1972)

  3. History of Employment Discrimination Law • Title VII of the Civil Rights Act of 1964 • EEOC created • Federal courts given jurisdiction for suits • Equal Employment Opportunity Act of 1972 expanded power of EEOC • Amended in 1975 by the Pregnancy Discrimination Act • Prohibited discrimination on the basis of pregnancy or childbirth

  4. History of Employment Discrimination Law • Age Discrimination Act of 1967 • Expanded Title VII protections to include age • Rehabilitation Act of 1973 • Prohibits federal contractors from discriminating against the handicapped • Americans with Disabilities Act of 1990 • Provides protection for workers with disabilities and imposes requirements for access

  5. History of Employment Discrimination Law • Executive Orders • Apply to agencies and federal contractors • Family and Medical Leave Act • Provides Family member with right to 12 weeks unpaid leave

  6. Title VII of the Civil Rights Act • Prohibits Discrimination on Basis of: • Race • Color • Religion • National origin • Sex • Pregnancy

  7. Title VII of the Civil Rights Act • Application of Title VII • Employers with 15 or more employees (for at least 20 calendar weeks) • Labor unions with 15 members and/or a hiring hall • Employment agencies that work for covered employers • State and local agencies

  8. Title VII of the Civil Rights Act • Non-covered Employees • Employment of aliens outside the United States • Religious corporations, when hiring for religious positions • Congress • Federal government (they have a separate scheme) • Indian tribes

  9. Title VII of the Civil Rights Act • Employment Procedures Covered • Hiring – Fringe benefits • Compensation – Rules • Training – Working conditions • Promotion – Dismissals • Employment agencies referrals • Demotions • Transfers

  10. Theories of Discrimination under Title VII • Disparate Treatment • Treating employees or potential employees differently on the basis of race • McDonnell Douglas v. Green established the required elements • Plaintiff belongs to a minority group • Plaintiff applied for and was qualified for job • Plaintiff was rejected (despite qualifications) • Job remained open • Employer’s burden of proof to show nondiscriminatory reason for the nonhire

  11. Theories of Discrimination under Title VII • Case 20.1 Chescheir v. Liberty Mutual Ins. Co.(1983) • What employer rule is at issue? • Were there examples of disparate use of the rule? • Is there a prima facie case

  12. Theories of Discrimination under Title VII • Disparate Impact • Not intentional discrimination • Rule results in different effect on groups • Example: Dothard v. Rawlinson—minimum height and weight requirement for prison guards had the effect of eliminating women • Mostly statistical cases showing impact • In Wards Cove Packing Co., Inc. v. Atonio (1989), the Supreme Court put greater burdens of proof on Title VII plaintiffs

  13. Theories of Discrimination under Title VII • Disparate Impact • Civil Rights Act of 1991 • Passed in response to Wards Cove case • Key provisions of the bill include a provision for jury trials in discrimination cases. • Provides compensatory damages whereas now the only remedies are back pay and reinstatement. • Employers required to carry the burden of business necessity in establishing a defense to a Title VII case. • 1991 Amendments also require the plaintiff employee to show causation between the practice of the employer and the disparate impact

  14. Specific Applications of Title VII • Pattern or Practice of Discrimination • Generally involves a statistical comparison • Example: 38 percent of work force in a community is black; 6 percent of an employer’s work force is black • Sex Discrimination • “Protective” legislation is prohibited • Examples: Lifting (30 lbs..) restrictions, safety restrictions, height/weight requirements • Ads cannot specify male or female

  15. Specific Applications of Title VII • Case 20.2 Burlington Industries, Inc. v. Ellerth(1998) • When will an employer be held liable for sexual harassment despite a lack of knowledge? • What major issues does the dissenting opinion raise?

  16. Specific Applications of Title VII • Sexual Harassment • Covered by EEOC guidelines • Employers must have policies on harassment • Types of offenses: • Demands for sexual favors—“quid pro quo” • Environment of sexual suggestion • Hostile conduct for refusal to provide sexual favors • Verbal or physical suggestions

  17. Specific Applications of Title VII • Sexual Harassment • Cannot be fired for refusal to accept sexual advances • Managers and companies have liability for failure to take action on complaints of sexual harassment

  18. Specific Applications of Title VII • Pregnancy Discrimination Act of 1974 • Coverage and protections • Cannot require pregnant employee to quit • Cannot demote upon return to work • Cannot refuse to allow employee to return to work • Same sick rules for pregnancy as other ailments • Same insurance coverage • No promotion or hiring refusals because of pregnancy

  19. Specific Applications of Title VII • Case 20.3 International Union v. Johnson Controls, Inc.(1991) • Are circumstance given when sex is a BFOQ? • What is the Court’s position on tort liability of the company with respect to the fetus?

  20. Specific Applications of Title VII • Religious Discrimination • Permitted when religious organization is hiring people as pastors or for religious duties • Employers must make reasonable accommodations for employees • Examples: Ansonia v. Philbrook, TWA v. Hardison • Reasonable accommodation • Need not burden other employees • Need not restructure workplace or schedule

  21. Antidiscrimination Laws and Affirmative Action • What is Affirmative Action? • Affirmative action is a remedial step taken to ensure that those who have been victims of discrimination in the past are given the opportunity to get work. • It is neither required nor prohibited under Title VII • Any employer can have an affirmative action program • Cannot use quotas but can set goals

  22. Antidiscrimination Laws and Affirmative Action • Who is Required to Have Affirmative Action Programs? • Those who have been subject to court orders or consent decrees • Those who are state and local agencies, colleges and universities receiving federal funds. • Those who are government contractors • Those who are businesses that work on federal projects

  23. Antidiscrimination Laws and Affirmative Action • Preparing an Affirmative Action Program • Begin with equal employment opportunity statement • Appoint an affirmative action officer • Conduct an internal audit • Establish overall goals and even goals for certain areas

  24. Antidiscrimination Laws and Affirmative Action • Affirmative Action Backlash • California’s proposition to eliminate programs in government agencies (including universities) • Adarand case requires affirmative action programs to withstand strict scrutiny

  25. Defenses to A Title VII Charge • Bona Fide Occupational Qualification (BFOQ) • Qualification of sex or religion necessary for job • Examples: Pastor of Methodist churches must be Methodist, actors and actresses for parts • Customer preference is not a BFOQ

  26. Defenses to A Title VII Charge • Seniority or Merit Systems • Sometimes a valid defense to Title VII • Must be bona fide • Must apply to all employees • Origins of the system cannot be discriminatory • Cannot be used to perpetuate discrimination

  27. Defenses to A Title VII Charge • Aptitude and Other Tests • Tests must be validated • Job-related • Do not eliminate certain races • Validate by following employees for correlation between test scores and job performance

  28. Defenses to A Title VII Charge • Misconduct • Defense that there was a valid reason for termination or different treatment • Employer could even use misconduct by employee discovered after termination

  29. Defenses to A Title VII Charge • Case 20.4 McKennon v. Nashville Banner Publishing Co.(1995) • Does Banner deny discriminatory intent? • Is reinstatement a remedy?

  30. Enforcement of Title VII • EEOC is Responsible • Five-member commission • Appointed by president/approved by Senate • No more than three from same party

  31. Enforcement of Title VII • Steps in an EEOC Case • Complaint • Filed by employee • Must be done within 180 days from the violation • Filed with EEOC or state agency • Employer is notified of the charge • EEOC has 180 days from filing of complaint to take action • If case not settled within 180 days, employee gets right-to-sue letter

  32. Enforcement of Title VII • Remedies • Injunctions • Back pay • Punitive damages • Affirmative action • Attorneys’ fees

  33. Other Antidiscrimination Laws • Age Discrimination in Employment Act of 1967 • Applies to employers with 20 or more employees • Protects those who are 40 years of age • Equal Pay Act of 1963 • Equal pay for equal work • Communicable Diseases in the Workplace • Arline case held that employer could not discriminate on the basis of tuberculosis

  34. Other Antidiscrimination Laws • Rehabilitation Act of 1973 • Protection for handicapped • Enforced by Labor Department • Must make reasonable accommodations for handicapped • Employers covered • Federal contacts over $2,500 • States and municipalities • Covers: Diabetes, epilepsy, heart diseases, cancer, retardation, blindness, deaf persons, former drug addicts and alcoholics

  35. Other Antidiscrimination Laws • Americans with Disabilities Act • Applies to employers with 15 or more employees • Required to make reasonable accommodations for handicapped • Cost, size of work force, nature of operations • Cannot use tests to screen out handicapped applicants • Local governments required to make transportation available to handicapped

  36. Other Antidiscrimination Laws • Case 20.5 PGA Tour v. Martin (2001) • Why does Martin wish an accommodation? • Is Martin seeking a public or employee accommodation? • Will the game of golf be changed?

  37. Other Antidiscrimination Laws • Family and Medical Leave Act • Twelve weeks’ unpaid leave each year for birth or adoption of child, illness of spouse, parent, or child • Must return to same job or equivalent

  38. The Global Work Force • Companies Must Follow Restrictions of Host Country • UN treaties support equal pay and nondiscriminatory treatment • EU follows all the treaties

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