copyright © allyn & bacon 2008 chapter 9 discrimination in employment this multimedia product...

Copyright © Allyn & Bacon 2008

Chapter 9 Discrimination Chapter 9 Discrimination in Employmentin Employment

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Title VII: DiscriminationTitle VII: Discrimination One of the most extensive federal One of the most extensive federal

employment laws, the Civil Rights employment laws, the Civil Rights Act of 1964 Title VII, provides in part Act of 1964 Title VII, provides in part that:that:


a)a) It shall be an unlawful employmentIt shall be an unlawful employment practice for any employeepractice for any employee

1.1. to fail or refuse to hire or to discharge to fail or refuse to hire or to discharge any individual or otherwise to any individual or otherwise to discriminate against any individual with discriminate against any individual with respect to his compensation, terms and respect to his compensation, terms and conditions or privileges of employment, conditions or privileges of employment, because of such individual’s race, color, because of such individual’s race, color, religion, sex or national origin;religion, sex or national origin;


The Supreme Court developed a The Supreme Court developed a three-step procedure for Title VI three-step procedure for Title VI challenges:challenges:


1.1. The plaintiff carries the initial The plaintiff carries the initial burden of establishing a prima facie burden of establishing a prima facie case of employment discrimination.case of employment discrimination.

2.2. The burden shifts to the defendant The burden shifts to the defendant to refute the prima facie case by to refute the prima facie case by demonstrating that a legitimate demonstrating that a legitimate nondiscriminatory purpose forms nondiscriminatory purpose forms the basis for its actions.the basis for its actions.


3.3. If the defendant is successful in its If the defendant is successful in its contention, then the burden shifts contention, then the burden shifts back to the plaintiff to show that back to the plaintiff to show that the defendant’s actions were a the defendant’s actions were a mere pretext for discrimination. mere pretext for discrimination.

If, of course, the defendant can If, of course, the defendant can demonstrate the absence of a demonstrate the absence of a discriminatory motive, there is no discriminatory motive, there is no need for step three. need for step three.


Sexual DiscriminationSexual Discrimination

Discrimination based on sex is also Discrimination based on sex is also covered under Title IX of the covered under Title IX of the Education Amendments Act of 1972, Education Amendments Act of 1972, 20 U.S.C. which prohibits sexual 20 U.S.C. which prohibits sexual discrimination by public and private discrimination by public and private educational institutions receiving educational institutions receiving federal funds. federal funds.


Title IX is administered by the Office Title IX is administered by the Office for Civil Rights (OCR) of the for Civil Rights (OCR) of the Department of Education. Department of Education.

Title IX, also like Title VII, makes a Title IX, also like Title VII, makes a provision for sexual distinctions in provision for sexual distinctions in employment where sex is a bona fide employment where sex is a bona fide occupational qualification. occupational qualification.


The Rehabilitation Act of 1973 and the The Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990Americans with Disabilities Act of 1990

The Americans with Disabilities Act The Americans with Disabilities Act (ADA)(ADA), in conjunction with the IDEA, , in conjunction with the IDEA, protects individuals with disabilities protects individuals with disabilities against discrimination and assures against discrimination and assures equal access and opportunity.equal access and opportunity.


Section 504 of the Section 504 of the Rehabilitation Act Rehabilitation Act of 1973of 1973 prohibits discrimination prohibits discrimination against any otherwise qualified against any otherwise qualified person who has a disability with person who has a disability with respect to employment, training, respect to employment, training, compensation, promotion, fringe compensation, promotion, fringe benefits, and terms and conditions of benefits, and terms and conditions of employment.employment.


The ADA is similar to Section 504 and The ADA is similar to Section 504 and not only protects students with not only protects students with disabilities but any person who has a disabilities but any person who has a physical or mental impairment that physical or mental impairment that substantially limits one or more substantially limits one or more major life activities, has a record of major life activities, has a record of such impairment, or is regarded by such impairment, or is regarded by others as having such an others as having such an impairment.impairment.


Major life activities, as interpreted by Major life activities, as interpreted by the act, may include such tasks as the act, may include such tasks as caring for oneself, performing caring for oneself, performing manual tasks, hearing, seeing, manual tasks, hearing, seeing, speaking, breathing, walking, speaking, breathing, walking, learning, and working.learning, and working.


Qualifications for EmploymentQualifications for Employment

Any individual with a disability is Any individual with a disability is qualified under ADA, if with or qualified under ADA, if with or without reasonable accommodations, without reasonable accommodations, he/she can perform the core he/she can perform the core functions of the employment position functions of the employment position held or desired to be held. held or desired to be held.


Scope of Protection: Scope of Protection: Section 504 and ADASection 504 and ADA

Both ADA and the Rehabilitation Act Both ADA and the Rehabilitation Act impact public schools by prohibiting impact public schools by prohibiting disability-based discriminationdisability-based discrimination..

When there is an allegation brought When there is an allegation brought against school districts claiming against school districts claiming discrimination, individuals bringing discrimination, individuals bringing these charges may file a complaint these charges may file a complaint with the Department of Education. with the Department of Education.


Racial DiscriminationRacial Discrimination

The equal protection standards prohibited The equal protection standards prohibited discrimination which can be linked with a discrimination which can be linked with a racially motivated objective.racially motivated objective.

Unlike Title VII, no remedial action was Unlike Title VII, no remedial action was attached to the equal protection clause, attached to the equal protection clause, unless there was clear evidence that unless there was clear evidence that segregation was caused by segregation was caused by de jurede jure (official (official and deliberate laws or policies to promote and deliberate laws or policies to promote segregation).segregation).


Title VII involves two basic types of Title VII involves two basic types of claims--disparate treatment and claims--disparate treatment and disparate impact.disparate impact.

The Supreme Court addressed these The Supreme Court addressed these two important issues in a later case two important issues in a later case involving discrimination on disparate involving discrimination on disparate treatment and disparate impact.treatment and disparate impact.


Disparate TreatmentDisparate Treatment simply means simply means that an employer treats some people that an employer treats some people more unfavorably than others more unfavorably than others regarding employment, job regarding employment, job promotion or employment conditions promotion or employment conditions based on race, color, religion, sex or based on race, color, religion, sex or national origin. national origin.


Disparate ImpactDisparate Impact is merely a showing is merely a showing that numbers of people of a similar that numbers of people of a similar class are affected adversely by a class are affected adversely by a particular employment practice particular employment practice which appears neutral, such as a which appears neutral, such as a requirement that all employees pass requirement that all employees pass a test.a test.


Age DiscriminationAge Discrimination

Age discrimination in public schools Age discrimination in public schools primarily affects teachers.primarily affects teachers.

In past years, many districts forced In past years, many districts forced teachers to retire when they reached teachers to retire when they reached a specified age.a specified age.

These policies and practices were These policies and practices were challenged by teachers under equal challenged by teachers under equal protection guarantees.protection guarantees.


However, all challenges and However, all challenges and uncertainties became insignificant uncertainties became insignificant with the passage of the with the passage of the Age Age Discrimination in Employment Discrimination in Employment ActAct of 1967 (ADEA) as amended in of 1967 (ADEA) as amended in 1978.1978.


Amendments added in 1986 Amendments added in 1986 removed the limit completely except removed the limit completely except for persons in certain public safety for persons in certain public safety positions (e.g. police officers and fire positions (e.g. police officers and fire fighters).fighters).

The act covers teachers and other The act covers teachers and other public employees.public employees.


Pregnancy and Pregnancy and Public School EmploymentPublic School Employment

Teachers in public schools are protected Teachers in public schools are protected by the Pregnancy Discrimination Act of by the Pregnancy Discrimination Act of 1978 (P.L. 95-555).1978 (P.L. 95-555).

This law is an amendment to Title VII This law is an amendment to Title VII which extends protection to pregnant which extends protection to pregnant employees against any forms of employees against any forms of discrimination based on pregnancy.discrimination based on pregnancy.

The courts have been fairly consistent in The courts have been fairly consistent in their rulings regarding issues related to their rulings regarding issues related to pregnancy.pregnancy.


Sexual HarassmentSexual Harassment

Sexual harassment is prohibited by Sexual harassment is prohibited by Title VIITitle VII and and Title IXTitle IX..

Sexual harassment was not included Sexual harassment was not included in Title VII of the Civil Rights of 1964 in Title VII of the Civil Rights of 1964 until 1980.until 1980.

Its primary intent is to protect Its primary intent is to protect employees from harassment in their employees from harassment in their work environments. work environments.


Harassment is considered to be a Harassment is considered to be a form of sex discrimination.form of sex discrimination.

It can manifest itself in many forms It can manifest itself in many forms from verbal statements, gestures or from verbal statements, gestures or overt behavior.overt behavior.

The victim, as well as the harasser, The victim, as well as the harasser, may be a male or a female, not may be a male or a female, not necessarily of the opposite sex. necessarily of the opposite sex.


More serious levels may involve More serious levels may involve sexual coercion or unwanted physical sexual coercion or unwanted physical relations.relations.

This type behavior This type behavior quid pro quoquid pro quo is is commonly associated with superior-commonly associated with superior-subordinate relationships in which subordinate relationships in which the victim, for fear of reprisal, will the victim, for fear of reprisal, will unwillingly participate.unwillingly participate.

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