MGMT 311 Ch. 21 Review: Employment Discrimination

Civil Rights Act of 1964 (Title VII)

Prohibits discrimination in privileges of employment based on race, color, religion, sex, or national origin

CRA Protected Classes

1. Race
2. Gender/sex
3. Religion
4. Color
5. National origin

Requirement for CRA Title VII Protection

Must have 15+ employees to get sued under CRA
<15= state statutes

What has to happen before courts have subject matter jurisdiction in a CRA Title VII suit?

plaintiff must exhaust EEOC procedures. Employee must file claim with EEOC first or state equivalent

Equal Employment Opportunity Commission (EEOC)

a federal agency designed to regulate and enforce the provisions of Title VII

Griggs v. Duke Power

1. Early case example that helped us understand Title VII
2. The idea of fair in form but discriminatory in operation
3. Dont measure aptitude in the abstract, but in applicability to the test

Disparate Treatment (Intentional) Prima Facie Case

1. Plaintiff is a member of a protected class
2. Plaintiff applied and was qualified for the job
3. Plaintiff was rejected by employer
4. Employer continued to see applicants or filled the position with a person not in that protected class

Burden of Proof (BOP) for Plaintiff

1. Plaintiff must first prove the prima facie case
2. Burden then shifts to the employer to show a legitimate reason for not hiring the plaintiff (tie-in defenses for employers)
3. Burden shifts back to the plaintiff to prove the employer's reason was a "sham"

Disparate Impact (Unintentional) Prima Facie case

1. The employer has a facially neutral employment practice or job requirement
2. Policy is neutrally applied
3. Policy has a significant adverse impact on a protected class
4. Use pool of applicants or rate of hiring tests to test this

Disparate Impact Employer Defenses

Burden of proof shifts to employer who tries to prove the pracrtice or requirement is job-related reason or a business necessity; but can also be justifications like insubordination, lack of experience etc.

Is lack of intent a defense to employment discrimination?

No

Reverse Discrimination

prohibited by Title VII. Defined as discrimination against a member of a majority group (usually involving race)

Section 1981 Claims (passed in 1866)

victims of racial and ethnic discrimination also have cause of action under this statute; no limits on damages; supervisors and managers can be sued personally for violations

Race-based discrimination

Race is interpreted broadly to apply to the ancestry or ethnic characteristics of a broad group of person, such as Native Americans

National origin discrimination

refers to discrimination based on a persons birth in another country or ancestry or culture, such as Hispanic

religious accommodation by employer

the employer must accommodate the employees religious observances, practices, and beliefs, unless it would be an undue hardship on the employer

Accommodation Balancing

Accommodations are balanced against any undue hardship; employer doesnt need to burden the business to accommodate

Religious Discrimination Plaintiff BOP

1. Plaintiff holds a sincere religious belief that conflicts with the job
2. Plaintiff informed employer of the conflict
3. Plaintiff was disciplined for failing to comply with the conflicting requirements

Religious Discrimination Defendant BOP

1. Reasonable accommodations were offered which removed the conflict between religion and the job requirement
2. (OR) any accommodation would be an undue hardship on the business

is there legislative history on what Congress meant by sex/gender-based discrimination?

No

Examples of sex-based disrcimination

1. Employers cannot classify jobs as male/female unless gender is a Bona Fide Occupational Qualification (BFOQ)
2. Height, weight, physical ability requirements can have disparate impact on women (but see defenses)
3. Employers CANNOT have separate seniority lists for promotion (like having 1 for men and 1 for women)

Pregnancy Discrimination Act of 1978(PDA)

amended Title VII, expanding the definition of gender discrimination to include discrimination based on pregnancy, child-birth or related medical conditions

Note PDA does NOT require an employer to give women anything including leave; nor it require an employer to accommodate pregnancy in any way specifically

Equal Pay Act of 1963 (amended FLSA, the wage law)

"Substantially Equal" Test: jobs do not have to be identical, just substantially equal for the act to apply. Court looks at job content, not description

Equal Pay Act 1963 Exceptions

1. Seniority system
2. Merit system
3. System that measures earnings by quantity/quality of production
4. A differential based on any factor besides sex

Equal Pay discrimination BOPs'

Plaintiff: substantially equal test
Defendant: four exceptions

Constructive discharge

employees who leave their jobs voluntarily can claim they were "constructively discharged" (as opposed to wrongfully discharged) if employer caused the employees working conditions to be so intolerable that a reasonable person would be compelled to quit

I.e. if they quit, they can still sue for discrimination

is sexual harassment a CRA Title VII Violation?

Yes

Quid Pro Quo (QPQ) Sexual Harassment

" this for that"

QPQ Plaintiff BOP

1. Belongs to protected class
2. Prove (not claim) unwelcomeness
3. Harassment is based on sex
4. Plaintiff suffers loss of tangible employment benefit as a result of a refusal to submit to the harassment

What type of liability do employers have for QPQ sexual harassment?

strict liability

(vicarious liability for actions of company managers/supervisors)

Hostile Working Environment (HWE) Sexual Harassment Plaintiff BOP

1. Belongs to protected class
2. Prove (not claim) unwelcomeness
3. Harassment is based on sex
4. Harassment affected condition of employment (changed what thought the job would entail)

Harris Factors (Proving HWE)

1. Frequency
2. Severity
3. Physically Threatening?
4. Did it reasonably interfere with the work

can victims prove HWE without tangible losses?

yes

Affirmative defense for employers in HWE case

Employer took decisive action to prevent or promptly stop the harassment
Victim failed to take advantage of corrective opportunities offered by employer

unwelcomeness test

- "totality of the circumstances"
1. Based on the totality of the circumstances, does the victim invite or accept the harassment?(speech, dress, activities silence, etc. are all factors)
2. Victim has a duty to object to unwelcome advances based on the severity of the conduct (more severe -> less duty (the inverse is true))
3. Employer is not automatically liable for employees sexually harassing each other

Proving Employer Liability for Co-worker Sexual Harassment

1. HWE all 4 elements
2. The employer knew or should've known about the harassment
3. The employer failed to take action

do employers still have affirmative defenses for coworker sexual harassment cases?

Yes

Proving Employer Liability for Sexual Harassment by Nonemployees

1. HWE 4 elements
2. Employer knew or should have known
3. Employer failed to PREVENT the harassment

the employer still has affirmative defenses

Are same sex harassment claims covered by CRA Title VII?

Yes

rule for same-sex harassment claims

would a reasonable person in the plaintiffs position believe the actions to be harassment?
If yes, HWE can be established

Remedies under CRA Title VII

1. Reinstatement
2. Back pay
3. Retroactive promotions
4. Front pay
5. Compensatory damages if intentional
6. Punitive damages if malice or reckless indifference

Age Discrimination in Employment Act of 1967 (ADEA) Prima Facie Case:

1. Plaintiff was a member of the protected age group (40+)
2. Plaintiff was qualified for the position from which he was discharged
3. Plaintiff was discharged under circumstances that give rise to inference of discrimination

Age discrimination case BOPs'

1. Plaintiff must prove prima facie case
2. Burden shifts to employer to prove a legitimate reason
Plaintiff can then try to prove the employers reason is a sham

Discrimination based on Military Status: USERRA

- protects civilian job rights and benefits for members of the military, former military personnel, and reservists

1. Vets can only be fired for cause
2. Public and private, even if you just have 1 employee
3. Managers have personal liability for violations

Defenses to Employment Discrimination

1. Business Necessity/Job Related Reason: employer must show a definite connection between the jbo requirement and job performance
2. Bona Fide Occupational Qualification (BFOQ): when a particular trait is essential for the job

Business Necessity/Job Related Reason

Necessity: whole workplace
Job reason: only the job

Bona Fide Occupational Qualification (BFOQ)

1. Relevant for disparate treatment cases
2. Gender and religion
3. Race can NEVER be BFOQ
4. Being a particular protected class attribute is essential for the job( think only catholic priests for church hiring etc.)

Seniority System

where promotions and other job benefits are distributed to workers with more years of service first

Affirmative Action

giving members of a protected class preferential treatment in hiring or promotiion to compensate for past patterns of discrimination

Affirmative Action and the CRA Title VII

Title VII of the CRA - neither requires nor prohibits affirmative action

Equal Protection Issues

1. Government employer makes employment decisions based on race = strict scrutiny test applied
2. Government makes employment decisions based on gender
= intermediate scrutiny applied

Americans with Disabilities Act of 1990

- NOT an affirmative action-like law
- Prohibts discrimination of a qualified individual based on a disability
- Focus is on qualification, not what "disabled" means

qualified individual in the ADA

with or without reasonable accommodations can do the essential job functions

Plaintiff BOP for ADA violation

- (proving qualified individual status)
- Plaintiff has a disability (1 of the 3 definitions)
- Qualified for the job with or without reasonable accommodations
- And is excluded due to discrimination based on the disability

Definitions of "disability"

1. Only physical or mental impairment that substantially limits a major life activity
2. Having a record of such an impairment
3. OR, being regarded by others as having such an impairment

Major life activities

1. Caring for one self
2. Manual and physical tasks that you often take for granted daily
3. Learning, reading etc.

"substantially limits"

1. materially restricts
2. Does NOT mean limited at all times
3. An impairment that is episodic or in remission that limits when such impairment is active

Corrective Measures

- General rule: whether plaintiff fits the definition of disabled is determined without regard to corrective measures
- Exception: glasses/contact lenses

Reasonable Accommodations

- ADA requires employers to reasonable accommodate employees with disabilities
- If an applicant or employee with disabilities, with reasonable accommodations, can perform essential functions, employer MUST make the accommodation

- Employer obligations:
1. Making existing facilities accessible
2. Job restructuring, modified work schedules/equipment

Defendant's BOP

- Employer is NOT required to accommodate if it creates undue hardship
- Undue hardship: causes you to violate your own policies or another law. Can also be if its overly-expensive

are drug addicts and alcoholics covered by the ADA

- Yes
- ADA only protects former drug abusers (completed or are in rehab)
- but employee can still be fired for drinking on the job