Chapter 21: Employment Discrimination

1. Chapter 21: Employment Discrimination

2. Introduction • The most important federal anti-discrimination laws are: • Title VII of the Civil Rights Act of 1964. • The Age Discrimination in Employment Act. • The Equal Pay Act. • The Americans with Disabilities Act.

3. §1: Title VII of the Civil Rights Act of 1964 • Title VII prohibits discrimination in employment on the basis of race, sex, color, religion, and national origin. “Sex” now includes pregnancy. • In addition to prohibiting religious discrimination, employers must reasonably accommodate an employee’s religious practices. • Enforcement of Title VII by EEOC.

4. Intentional and Unintentional Discrimination • Intentional: “Disparate-Treatment” Discrimination. Applicant must prove: • She is member of a protected class; • Applied, qualified and rejected for job; and • Employer continued to seek applicants. • Unintentional: “Disparate Impact” Discrimination. • No-protected applicant sues Employer who tries to integrate members of protected classes into workplace.

5. Discrimination Based on Race, Color, and National Origin • Title VII prohibits employment policies or intentional/ negligent discrimination on basis of race, color or national origin. • Company policies that discriminate are illegal, unless (except for race) they have a substantial demonstrable relationship to realistic qualifications for job.

6. Discrimination Based on Religion • Employers must “reasonably accommodate” the “sincerely held’ religious practices of its employees, unless to do so would cause undue hardship to employer’s business.

7. Discrimination Based on Gender • Title VII prohibits sex discrimination in the work place. • Employers are prohibited from classifying jobs as male or female or from advertising such, unless employer can prove gender is essential to the job. • Plaintiff must show gender was determining factor in hiring, firing or lack of promotion.

8. Discrimination Based on Gender • Two types of sex discrimination: • Differential treatment. • Sexual harassment: • Hostile Work Environment. • Quid Pro Quo.

9. Constructive Discharge • Employer allows working conditions so intolerable that reasonable person would feel compelled to quit. • Proving constructive discharge. • Objective proof of intolerable working conditions. • Courts usually require causation by employer.

10. Sexual Harassment • Although Title VII does not specifically mention sexual harassment as a form of sex discrimination, the U.S. Supreme Court has interpreted Title VII’s prohibition against sex discrimination to include a prohibition against sexual harassment. • There are currently two forms of recognized sexual harassment: Quid Pro Quo and Hostile Environment.

11. Quid Pro Quo Harassment • Quid Pro Quo harassment involves the demands for sexual favors by a superior from a subordinate, in exchange for some workplace benefit. • Under certain conditions, an employer may be liable for the quid pro quo harassment committed by its supervisory employees.

12. Hostile Work Environment • Hostile environment occurs when workplace is “permeated” with discriminatory intimidation, ridicule, insult so severe to alter the conditions of the victim’s employment. • The conduct in the workplace must be offensive to a reasonable person as well as to the victim, and it must be severe and pervasive.

13. Supreme Court Guidelines • Faragher v. City of Boca Raton (1998). • Employer (city) could be liable for supervisor’s harassment even though the employer was unaware of the conduct. Harassment policies and procedures had not be distributed among employees. • Burlington Industries v. Ellerth (1998). • Company liable for harassment even though the employee suffered no adverse job consequences.

14. Supreme Court Guidelines • Employers have a defense if: • They took “reasonable care to prevent and correct promptly any sexually harassing behavior” by establishing and distributing effective harassment policies and procedures. • That the employee suing for harassment failed to follow these policies and procedures.

15. Retaliation by Employer • Charges of harassment by supervisors sometimes result in retaliation against the complaining employee. Title VII includes an “anti retaliatory” provision. • Does Title VII’s ban on anti-retaliation cover non-job related acts? • Case 21.1 Burlington Northern and Santa Fe Railway Co. v. White (2006).

16. Harassment by Co-Workers and Nonemployees • Employer generally liable only if employer knew or should have known and failed to take action. • Employee notice to supervisor is notice to Employer under agency law. • Employers may also be liable for harassment by non-employees. • Same-sex harassment also violates Title VII.

17. Same Gender Harassment • In 1998, the U.S. Supreme Court ruled that same sex harassment was actionable under Title VII ( see Oncale v. Sundowner Offshore Services, Inc.). • Can be difficult to show the harassment is “based on sex.” • Title VII does not prohibit discrimination based on “sexual orientation” although many companies’ policies do address that.

18. Online Harassment • Employees can create hostile work environment using chat, email to spread racial and sexual jokes and slurs. • Employers can avoid liability with prompt remedial action. • Employees may be discharged for using company computers to distribute offensive material to coworkers.

19. Remedies Under Title VII • Liability may be extensive. Plaintiff may receive: • Reinstatement. • Back Pay. • Retroactive Promotions; and • Damages.

20. §2: Discrimination Based on Age • The Age Discrimination in Employment Act (ADEA) protects individuals over the age of 40 from workplace discrimination that favors younger workers. • Case 21.2 Cash Distributing Co. v. Neely (2007).

21. Discrimination Based on Age • Replacing older workers with younger workers. • Companies typically defend based on employee’s inability to perform the work, or the job was eliminated. • Under Kimmel v. Florida Board of Regents (2000), states are immune from private lawsuits brought in federal court under 11th Amendment.

22. § 3: Discrimination based on Disability • The Americans with Disability Act (ADA) requires employers to offer reasonable accommodation to employees or applicants with a “disability” who are otherwise qualified for the job they hold or seek. • The duty of reasonable accommodation ends at the point at where it becomes an undue hardship.

23. The ADA • To prevail on a claim under ADA, plaintiff must show she: • Has a “disability.” • Is otherwise qualified for the employment in question; and • Was excluded from employment solely because of the disability. • Plaintiff must first exhaust administrative relief with EEOC.

24. ADA: What is a “Disability”? • ADA defines disability as: • Physical or mental impairment that “substantially limits one or more of major life activities; or • A record of such impairment; or • Being regarded as having such an impairment. • Determination is decided on a case-by-case basis. • “Correctible Conditions” are not necessarily disabilities.

25. “Reasonable Accommodation” • If an employee with a disability can perform the job with reasonable accommodation, without undue hardship on the employer, the accommodation must be made. • Examples: wheelchair ramps, flexible working hours, improved training materials. • Job Applications and Pre-Employment Physical Exams.

26. ADA: Substance Abuse and Health Care Plans • Substance Abusers: former drug users who have gone through supervised drug-rehabilitation are protected, but not current drug users. • Health Insurance Plans: workers with disabilities must be given access to same health care given other employees. (But an employer can put a cap on payments.)

27. Discrimination Based onAssociation with Disabled Individuals • ADA contains provision that protects individuals who have an association with someone else who has a disability. • Plaintiff must show she: (1) was qualified for the job, (2) subject to adverse employment action, and (3) was known by employer to have a associate or relative with a disability. • Case 21.3 Francin v. Mosby (2008).

28. §4: Defenses to Employment Discrimination • There are four basic types of defenses to employment discrimination claims. • Business necessity. • Bona fide occupational qualification. • Seniority Systems. • After-acquired evidence of employee misconduct.

29. Business Necessity • The business necessity defense requires the employer to demonstrate that the imposition of a job qualification is reasonably necessary to the legitimate conduct of the employer’s business. • Business necessity is a defense to disparate impact discrimination.

30. Bona Fide Occupational Qualification • The bona fide occupational qualification (BFOQ) defense requires an employer to show that an particular skill is necessary for the performance of a particular job. • The BFOQ defense is used in cases of disparate treatment discrimination.

31. Seniority Systems • A seniority system is one that conditions the distribution of job benefits on the length of time one has worked for an employer. • A seniority system can be a defense only if it is a bona fide system, not designed to evade the effects of the anti-discrimination laws.

32. After-Acquired Evidence • After-acquired evidence refers to evidence of misconduct, committed by an employee who is suing an employer for employment discrimination, that is uncovered during the process of discovery conducted in preparation for a defense against the suit. • While it may serve to limit employee recovery, it does not act as an absolute defense for the employer.

33. § 5: Affirmative Action • Affirmative action programs go one step beyond non-discrimination: they are designed to “make up” for past patterns of discrimination by giving preferential treatment to protected classes. • AA has led to “reverse discrimination” cases. • University of California v. Bakke (1978). • Adarand Constructors v. Pena (1995). • Hopwood v. State of Texas (1996).

34. Subsequent Supreme Court Decisions • Gratz v. Bollinger (2003). • Mechanical formula giving applicants points violated equal protection. • Grutter v. Bollinger (2003). • Race or ethnicity can be a flexible ‘plus’ factor in admissions.

35. Subsequent Supreme Court Decisions • In Parents Involved in Community Schools v. Seattle School District (2007),the Court applied strict scrutiny and held that the school districts failed to show that use of racial classifications in their student assignment plans was necessary to achieve their stated goal of racial diversity.