generally, what kind of conduct is prohibited by title vii of the civil rights act of 1964, as...

• Generally, what kind of conduct is Generally, what kind of conduct is prohibited by Title VII of the Civil Rights prohibited by Title VII of the Civil Rights Act of 1964, as amended?Act of 1964, as amended?• What is the difference between What is the difference between

disparate-treatment discrimination and disparate-treatment discrimination and disparate-impact discrimination? disparate-impact discrimination?

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 2

• What remedies are available under Title What remedies are available under Title VII of the 1964 Civil Rights Act, as VII of the 1964 Civil Rights Act, as amended?amended?• What federal acts prohibit discrimination What federal acts prohibit discrimination

based on age and discrimination based on based on age and discrimination based on disability?disability?• What are three defenses to claims of What are three defenses to claims of

employment discrimination?employment discrimination?© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 3

• Title VII prohibits discrimination in Title VII prohibits discrimination in employment on the basis of race, employment on the basis of race, sex, color, religion, and national sex, color, religion, and national origin. “Sex” now includes pregnancy.origin. “Sex” now includes pregnancy.–Applies to employers involved with

interstate commerce with 15 or more employees.


• In addition to prohibiting religious In addition to prohibiting religious discrimination, employers must discrimination, employers must reasonably accommodate an reasonably accommodate an employee’s religious practices.employee’s religious practices.• Equal Employment Opportunity Equal Employment Opportunity

Commission: Commission: monitors compliance with monitors compliance with Title VIITitle VII..


• Intentional and Unintentional Intentional and Unintentional Discrimination.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.• Burden then shifts to employer who must

articulate a legal reason for not hiring.© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

• Intentional and Unintentional Intentional and Unintentional Discrimination (cont’d).Discrimination (cont’d).–Unintentional (Disparate Impact)

Discrimination.• Occurs when a protected group of people

is adversely affected by an employer’s practices, procedures, or tests, even though they do not appear to be discriminatory.



Discrimination.• Pool of Applicants Test: plaintiff shows

percentage of the protected class in employer’s workforce does not reflect percentage in local labor market.



Discrimination.• Rate of Hiring: plaintiff compares selection

rates of members of protected class with nonmembers in employer’s workforce. According to EEOC, less than 80% may show disparate impact.


• Discrimination Based on Race, Color, Discrimination Based on Race, Color, and National Origin.and National Origin.–Title VII prohibits employment policies or

intentional/ negligent discrimination on basis of race, color or national origin.• Policies that discriminate are illegal, unless

(except for race) they have a substantial demonstrable relationship to realistic qualifications for job.


• Discrimination Based on Race, Color, Discrimination Based on Race, Color, and National Origin (cont’d).and National Origin (cont’d).–“Reverse” Discrimination: discrimination

against majority group individuals, such as white males.• Ricci v. DeStefano (2009) : Supreme Court held City

of New Haven’s testing and promotion procedures were race-conscious and discriminatory against white firefighters, violating Title VII.


• Discrimination Based on Discrimination Based on Race, Color, Race, Color, and National Originand National Origin (cont’d). (cont’d).–Potential “Section 1981” Claims.

• Discrimination Based on Discrimination Based on ReligionReligion..–Employers must reasonably accommodate

the sincerely held religious practices of its employees, unless to do so would cause undue hardship to employer’s business.


• Discrimination Based on Discrimination Based on Gender.Gender.–Employers are prohibited from classifying

jobs based on gender, unless employer can prove gender is essential to the job.• Pregnancy Discrimination Act.• Equal Pay Act (1963). • Lilly Ledbetter Fair Pay Act (2009).


• Constructive DischargeConstructive Discharge..–Employer causes working conditions to

be so intolerable that reasonable person would feel compelled to quit.• An employee can be “constructively

discharged” but still leave voluntarily.


• Constructive DischargeConstructive Discharge (cont’d). (cont’d).–Proving Constructive Discharge.• Plaintiff must present objective proof of

intolerable working conditions, which employer knew about and failed to correct.• Employee’s resignation must be a

foreseeable result of working conditions.–Applies to all Title VII discrimination.


• Sexual Harassment.Sexual Harassment.–The Supreme Court has interpreted

Title VII’s prohibition against sex discrimination to include prohibitions against sexual harassment. There are currently two forms of sexual harassment:• Quid Pro Quo. • Hostile Work Environment.


• Sexual HarassmentSexual Harassment (cont’d). (cont’d).–Quid pro quo: demands for sexual favors are

demanded in return for job opportunities, promotions, salary, increases or other tangible benefits. –Hostile Work Environment: workplace is

permeated with discriminatory intimidation, ridicule, insult so severe that working conditions are abusive to employee.


• Sexual HarassmentSexual Harassment (cont’d). (cont’d).–Harassment by Supervisors: For employer

to be liable for a supervisor’s sexual harassment, a supervisor must have taken a tangible employment action against the employee. – Employer’s Affirmative Defense.


• Sexual HarassmentSexual Harassment (cont’d). (cont’d).–The Ellerth / Faragher Affirmative

Defense is based on two 1998 Supreme Court decisions. Defense has two elements:• (1) Employer must have taken reasonable

care to prevent and promptly correct any sexually harassing behavior, and


• Sexual HarassmentSexual Harassment (cont’d). (cont’d).–The Ellerth / Faragher Defense (cont’d). • (2) Plaintiff-employee must have

unreasonable failed to take advantage of preventative or corrective opportunities to avoid harm.• If an employer can prove both elements,

he will not be liable for supervisor’s harassment


• Sexual HarassmentSexual Harassment (cont’d). (cont’d).–Retaliation by Employers against

employees that complain about sexual harassment or other Title VII violations. –Harassment by Coworkers and

Nonemployees. • Employer generally liable only if employer

knew or should have known and failed to take action.


• Sexual HarassmentSexual Harassment (cont’d). (cont’d).–Harassment by Coworkers and

Nonemployees (cont’d).• Notice to supervisor is sufficient under

agency law. Employers may also be liable for harassment by non-employees.


• Sexual HarassmentSexual Harassment (cont’d). (cont’d).–Same-Gender Harassment.• In 1998, Supreme Court held in Oncale v.

Sundowner Offshore Services that Title VII prohibitions against sexual harassment extended to same-sex harassment.

–Proof of Same-Gender Harassment.• Easier to prove when harasser is homosexual, but

sexual orientation is not necessarily the same as “sex” (gender).


• Online HarassmentOnline Harassment..–Hostile work environment created using

company chat, blogs, email.• Employers can avoid liability with prompt

remedial action.• Employees may be discharged for using

company computers to distribute offensive material to coworkers.


• RemediesRemedies under Title VII. under Title VII.–Liability may be extensive. Plaintiff may

receive:• Reinstatement.• Back Pay.

–Retroactive Promotions; and–Damages.


• The Age Discrimination in The Age Discrimination in Employment Act (ADEA) protects Employment Act (ADEA) protects individuals over the age of 40 from individuals over the age of 40 from workplace discrimination that favors workplace discrimination that favors younger workers. younger workers.


• ProceduresProcedures under the ADEA. under the ADEA.–Plaintiff must show discrimination was

THE reason for adverse employment action.–CASE 30.1 Mora v. Johnson Memorial Mora v. Johnson Memorial

Foundation, Inc.Foundation, Inc. (2010). What was the ‘disputed question of material fact’ the court referred to?


• Procedures Procedures (cont’d).(cont’d).–To establish a prima facie case, the

employee must provide that the discrimination was based on age bias. The bigger the age gap the more likely the bias.

• State Employees Not Covered by the State Employees Not Covered by the ADEA.ADEA.


• The Americans with Disability Act The Americans with Disability Act (ADA) requires employers to offer (ADA) requires employers to offer “reasonable accommodation” to “reasonable accommodation” to employees or applicants with a employees or applicants with a disability who are otherwise qualified disability who are otherwise qualified for the job they hold or seek.for the job they hold or seek.


• ProceduresProcedures under the ADA. under the ADA.–To prevail 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 her claim

through the EEOC process.


• What is a DisabilityWhat 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.

•


• What is a DisabilityWhat is a Disability? (cont’d)? (cont’d)–Supreme Court’s Narrow Definition.

From 1999-2007, the Court made it harder for employees to establish a disability.

•


• What is a DisabilityWhat is a Disability? (cont’d)? (cont’d)–2008 Amendments Reverse Prior Supreme

Court Cases.• CASE 30.2 Rohr v. Salt River Project Rohr v. Salt River Project

Agricultural Improvement and Power DistrictAgricultural Improvement and Power District (2009). Diabetes is a disability if it significantly restricts eating.

•


• Reasonable Accommodation.Reasonable Accommodation.–Undue Hardship. 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.

•


• Reasonable Accommodation.Reasonable Accommodation.–Job Applications and Preemployment

Physical Exams.•Modifications to applications and selection

process so those with disabilities can compete.• Employers are restricted on pre-hiring questions

and physical exams.

•


• Reasonable Accommodation.Reasonable Accommodation.–Substance Abusers: Only FORMER drug users

completed or going through supervised drug rehabilitation programs qualify as “disabled.”• Employers can fire an alcoholic is he poses

substantial risk.–Health Insurance Plans: equal access to health care.

•


• Association Discrimination.Association Discrimination.–Protects individuals based on an identified

disability of another person they are associated with.–To prevail, plaintiff must show she:• (1) was qualified for the job, (2) was subjected to an adverse

employment action, and (3) was known by her employer to have a relative or an associate with a disability.

•


• Association Discrimination Association Discrimination (cont’d). (cont’d).–CASE 30.3 Francin v. Mosby, Inc. (2008).

What factors helped Francin’s claim of association discrimination?

• Hostile-Environment Claims under the ADA.Hostile-Environment Claims under the ADA.–Plaintiff must show defendant’s conduct was

sufficiently severe that conditions of employer were altered.

•


• There are four basic types of There are four basic types of defenses to employment defenses to employment discrimination claims. discrimination claims. –Business Necessity.–Bona Fide Occupational Qualification.–Seniority Systems. –After-Acquired Evidence.


• Business NecessityBusiness Necessity..–Requires the employer to demonstrate

that a job qualification is reasonably necessary to the legitimate conduct of the employer’s business.–Business necessity is a defense to

disparate impact discrimination.


• Bona Fide Occupational QualificationBona 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.


• Seniority SystemsSeniority Systems..–Conditions the distribution of job

benefits on the length of time one has worked for an employer.–Can be a defense only if it is a bona fide

system, not designed to evade the effects of the anti-discrimination laws.


• After-Acquired EvidenceAfter-Acquired Evidence..–Refers to evidence of misconduct,

committed by an employee who is suing an employer for employment discrimination.• Uncovered during the process of discovery

conducted in preparation for a defense against the suit.• Not an absolute defense for employer.


• Designed to “make up” for past Designed to “make up” for past patterns of discrimination by giving patterns of discrimination by giving preferential treatment to protected preferential treatment to protected classes.classes.• ConstitutionalityConstitutionality of Affirmative Action of Affirmative Action

Programs. Programs. –May violate 14th Amendment. (Adarand

Constructors case). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 44

• ConstitutionalityConstitutionality (cont’d). (cont’d).–Affirmative action program is

constitutional only if it attempts to remedy past discrimination and does not make use of quotas or preferences.

• Affirmative Action in SchoolsAffirmative Action in Schools..–Generally, program that automatically

awards minority students specified number of points is unconstitutional.


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