Chapter 9

1. Chapter 9 Equity Issues: Beyond Jurisdiction and Enforcement

2. Title VII • Title VII does not apply to students it only applies in the workplace • Its protections are broader than the title IX, EPA, and the ADA • It prohibits discrimination based on race, color, religion, national origin , and sex • It applies to employers and would be employers • Used in sexual harassment because of its clear definition of it

3. Sexual Harassment • Sexual Hrassment is: unwelcome sexual overtures, requests, contact, or verbal harassment when • The recipient’s term or condition of employment hinges on submission to the harassing conduct. • Submission is used as a basis for employment decissions • The conducts purpose or effect is to unreasonably interfere with the recipients work perfromance or creates an intimidatiing, hostile, or offensive work environmnet

4. Sexual Harassment • Quid quo pro • This category involves threats or promises that in return for sexual favors, the victim will be given promotions, higher grades, better working conditions, tenure, or similar rewards • Hostile environment • This category means that sexual harassment via jokes, unwanted contact pictures, and so forth, may create an environment in which the victim finds it unreasonably difficult to work or attend school or practice

5. Sexual Harassment • Sex of victim and victimizer • In 1998 the supreme court decision of Oncale tells us that sexual harassment does not require the harasser and the victim to be of opposite sexes • Title VII definition of sexual harassment applies to harassment based on sex, gender, and sexual orientation realities and perceptions • Employer Liability • In the court case of Faragher v Boca Raton faragher filed suit saying that sexual harassment made a hostile environment • This court case tells us that the employer can be liable even if the person is a direct supervisor and there has been no action taken against the victim • The employer has a defense if there has been no action taken to the employee. The defense has two required elements • The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior • The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise

6. Importance of Notice • Does the victim need to inform their employer of the sexual harassment • If the person is using title VII for the action then the person does not need to inform the employer of the harassment before they can file suit • Title VII requires the employer to provide a workplace free of harassment • If the person is using ttile IX then the employer must be made aware of the situation before there can be a lawsuit • In title IX cases the notice of harssment must be given to a school official who has authority to institute corrective measures on the schools or districts behalf and then the official must be indifferent to the misconduct for the plantiff to be able to sue for damages • http://www.musc.edu/vawprevention/policy/daviscase.shtml

7. Theories of discrimination under title VII • The four main theories of liability under title VII are • Disparate impact • Systemic disparate treatment • Individual disparate treatment • Retaliation

8. Theories of discrimination under title VII • Disparate impact • An example of this would be if a division 1 football school had a job opening for an athletic director and had one of the qualifications the person needed to have bee 3 years of football coaching experience • This would appear to treat all applicants the same but there are no women who have football coaching experience • The impact of the gender-neutral announcement would be harsher on women • It would also be difficult to explain why there needed to be football experience for the job, there has to be a bona fide qualification reasonably necessary to the normal operation of the job

9. Theories of discrimination under title VII • Systemic disparate treatment • This would be if the job announcement boldly stated that women need not apply to the job • This exists when an employers policies or application of those policies produce treatment that disfavors one group • May be on a group or individual basis

10. Theories of discrimination under title VII • Individual disparate treatment • This occurs when the employers policies or their application procedures treatment disfavors a particular individual based on the persons membership in a protected class • Just because another member of that same protected class has been treated fairly doesn’t dismiss the fact the you haven’t

11. Theories of discrimination under title VII • When disparate treatment has been alleges, either individual or systemic the plaintiff can either provide evidence, or interferential evidence concerning the treatment of class members sufficient to establish a prima facia case • Once the plaintiff has shown that discrimination exists it then rests on the employer to show a nondiscriminatory reason for the apparent discrimination • In a disparate impact case the plaintiff will try to show that the policies that seem neutral, produce, when applied, a situation that improperly disfavors a particular group or individual • Statistical evidence is frequently offered to show the discriminatory impact

12. Theories of discrimination under title VII • In sum there are only two defences to either a disparate treatment or disparate impact • The group or individual is not actually disfavored by the disparate impact, or treatment • There is a bona fide occupational qualification that requires the disparate treatment or impact • A bona fide reason can be used under title VII but is not a universal defence • For example it cannot be used to make a decision based on race or color • Can be used for religion, gender, and national origin • It is the burden of the employer to prove a bona fide occupational qualification • The employer cannot use client preference like the athlete only like to be coached by a male coach

13. Religion and title VII • Discrimination based on religion is allowed under title VII if, and only if there is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise and if the institution is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religious corporation, association, or society or if the curriculum of such a school is directed toward the propagation of a particular religion

14. Equal Pay Act • The equal pay act limits its concerns to gender discrimination in the area of employment compensation • The EPA prohibits employers paying a member of one sex differently from a member of the opposite sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions • Unlike title VII the EPA requires the identification of a comparator employee • This person needs to be a person of the opposite sex who has a higher level of compensation even though they have the same work responsibilities

15. Equal Pay Act • Similar skills • These only relate to those that are requires by the job • Additional talents, skills and experiences are irrelevant • Job Titles • If the person has different job titles to receive more compensation, then they have to actually be doing what’s in the job title • Revenue production • This is not used when comparing compensation. It would be too easy for an employer to put someone is a situation where they produce more revenues and put someone in a harder situation

16. Equal Pay Act • Rationales for disparate salaries • The EEOC has published its enforcement guidelines on sex discrimination in compensation of sports coaches in the educational institute. Below are someof the more frequently used • “You have to pay males more because everyone does.’ • Prior pay should not be taken into account when paying for a coach. • Pay discrimination has historically occurred in the past, so that is the main reason most males salaries may have been highr • To pay a person based on their last job the employer would have to show that the proir salary was nondiscriminatory based on the employee’s skills, education, and experiences, and that the current employer did not totally rely on the prior salary to set the current one

17. Equal Pay Act 2. “He demanded more money in the negotiations and we were afraid we would loose him to the school across the town • If the employer carried out a take it or leave it attitude with the female candidate and let the male candidate negotiate then there would be an issue with equal pay 3. “our male basketball coach also has the title of athletic director” • If they are actual duties then a pay difference can occur, but if it is title only there can be no pay increase. These extra duties can also have not just been offered to the male coach as well

18. Equal Pay Act 4. “Our male basket ball coach has three years experience as an assistant volleyball coach and five years as a head coach. Our female basketball coach has five years experience as head coach, but only two years experience as an assistant basketball coach” • Experience may be used as a defense for pay disparity but only if the experience is related directly to the specific job and if the experience makes the employee more valuable within the job

19. Disabilities and the hiring process • The ADA covers job applicants as well as employees. It is for this reason that the selection of interview questions need to exclude any which have to do with the persons disability • If the person is qualified and with reasonable accommodations can meet the criteria of the job then disability may not be negatively taken into account in the hiring process • It is difficult for the hiring person to justify why questions about the disability were asked in the interview if the answers were of no significance in the hiring deciision • It is better to akse if the person is able to do the job

20. The 11th amendment and the ADA • “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the united States by citizens of another state, or by citizens or subjects of any foreign state” • This simply means that States are generally immune for being sued for money damages for violating federal laws • Case law has ignored the detail of other states, and has also limited the immunity to only states and excludes the immunity to local, city, or county governments and their agencies • This would mean that employees of a state university would not be covered by the ADA, but the private school across the street would