Equal Employment Opportunity

1. Equal Employment Opportunity Principles of Discrimination Law

2. Summary: Discrimination Law • What is “discrimination” and who is protected? • Equal Achievement vs Equal Opportunity • Why do these laws exist? Are they still needed? • How does a plaintiff build a prima facie case? • How does an employer defend itself?

3. Two Doctrines of Fairness • Equal Achievement • Equal Opportunity • “Even a true generalization about a class cannot justify class-based treatment” (Supreme Court’s Norris decision, 1983)

4. Unemployment Trends

5. Earnings by Race 2006

6. Building a Prima Facie Case • Disparate treatment • McDonnell Douglas v. Green • Disparate (Adverse) Impact • Griggs v. Duke Power

7. Proving Disparate Treatment 1. In general: show differential treatment based on protected characteristics 2. McDonnell-Douglas v. Green rule • Possess protected characteristic • Applied for job • Met job qualifications requirements • Rejected/job remained open

8. Proving Disparate Impact 1. Disparate rejection rates • Male rejection rate vs. female rejection rate 2. Disparate potential rejection rates 3. Population comparisons • Males in firm/qualified males in market vs • Females in firm/qualified females in market

9. The Four-fifths Rule “A selection rate for any race, sex or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact....”

10. Defenses to Disparate Treatment

11. Defenses to Disparate Impact • Business Necessity • “that which is reasonably necessary to the safe & efficient operation of the business” • “legitimate and overriding business considerations” • Job Relatedness • demonstrating a relationship between a requirement and job performance

12. Title VII Remedies • Agreement to cease practice • Reversal of adverse decision • Affirmative Action Program • Monetary • Back pay (up to 2 years) • Litigation costs • Punitive damages (if intentional) • Compensatory damages (if malicious)

13. Summary: Discrimination Law • Why these laws exist • Equal Achievement vs Equal Opportunity • What is “discrimination” and who is protected? • Evidence and Proof • Disparate Impact vs. Disparate Treatment • Plaintiff’s burden: prima facie evidence • Employer’s defense

14. Equal Employment Opportunity Primary Anti-Discrimination Laws

15. EEO Legal Constraints • U.S. Constitution • 5th & 14th Amendments particularly • Statutory (Legislative) Law • Federal, State, Municipal • Case (Common) Law • Executive Orders • <Regulatory agency guidelines>

16. Primary Federal EEO Laws • Equal Pay Act (1963) • Title VII, CRA (1964/72/91) • Vocational Rehabilitation Act (1967) • Age Discrimination in Empl. Act (1967/86) • Pregnancy Discrimination Act (1978) • Immigration Reform/Control Act (1986) • Americans with Disabilities Act (1990)

17. Title VII • Established protected characteristics • Created Equal Employment Opportunity Comm • Create guidelines (e.g. Uniform Guidelines on Selection) • Enforce Title VII • Collect compliance data (Form EEO-1) • Basis for other EEO laws • Pregnancy Discrimination Act (1978) • Age Discrimination in Employment Act (1967, 1986) • Part of Civil Rights Act (1964/72/91)

18. Americans with Disabilities Act • Prohibits discrimination against “qualified individuals with a disability” • Who are “qualified individuals”? • A person with a disability who, with or without reasonable accommodation, can perform the essential functions of the job”

19. Some ADA Statistics • 43 million Americans may be covered • 90,000 lawsuits filed (as of 11/98) • Plaintiffs have lost 90% of cases that have gone to court • Costs $100K to defend

20. What is a “Disability”? • “A physical or mental impairment which substantially limits one or more of life’s major activities” • “communication, ambulation, self-care, socialization, education, vocational training, employment, transportation...with primary attention given to those life activities that affect employability” • “A record of such impairment” • “Being regarded as having such an impairment”

21. Reasonable Accommodation • Employers must change job conditions, tasks, or requirements in order to allow otherwise qualified employees to do the job • This also includes the application process • But accommodation should not represent an “undue hardship”

22. “Undue Hardship”? • “any accommodation that would be unduly costly, extensive, substantial, or disruptive or that would fundamentally alter the nature of the operation of the firm” • based on resources of individual site • decided on case-by-case basis

23. What are Essential Functions? • “Primary job duties that are intrinsic to the employment position” • time spent doing • criticality • ability of others to cover • Should be determined before hiring decision • Be sure to include “obvious” KSAs

24. Hiring Implications of ADA • Determine essential functions • Remove recruitment barriers • Applicants may need to be accommodated • Treat applicants equally • Pre-employment medical exams only after job offer • Allow applicant to identify self as disabled • Accommodation of job requirements

25. Review: Primary Federal EEO Laws • Equal Pay Act (1963) • Title VII, CRA (1964/72/91) • Vocational Rehabilitation Act (1967) • Age Discrimination in Empl. Act (1967/86) • Pregnancy Discrimination Act (1978) • Immigration Reform/Control Act (1986) • Americans with Disabilities Act (1990)

26. EEO Law & Multinationals • American employees of US corporations can sue under Title VII, ADEA or ADA even if working overseas • But this applies only to US citizens, not foreign citizens working for US companies • Does not apply to Fair Labor Standards Act • “Foreign Laws Defense” • Exemption allowed if complying with US laws would cause violation of local laws • Does NOT include customs or preferences