Emp. Rights & Resp. Exam #2

Equal Pay Act of 1963

No employer shall discriminate between employees on the basis of gender by paying wages to employees at a rate less than the rate at which he plays wages to employees of the opposite gender

• 29 USCA Section 206d

Pregnancy Discrimination Act of 1978

pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes

• 42 U.S.C 2000e

Substantive Discrimination Claims 2019

32.4%

Wedow v. Kansas City

U.S. Court of Appeals for the Eighth Circuit affirmed that failing to provide female firefighters with properly fitting protective gear and adequate facilities constitutes gender discrimination under Title VII

Gender Plus Discrimination

employment discrimination based on gender and some other factor such as marital status or children

Phillips v. Martin Marietta Corp.

The Court held that hiring policies cannot have different standards for men and women with preschool-aged children

Gender Sterotypes

the assumption that most or all members of a certain gender must act a certain way

Workplace decisions based on stereotypes are prohibited by Title VII

True

Price Waterhouse v. Hopkins

The ruling established that gender stereotyping is actionable as sex discrimination

• Female candidate denied partnership because of aggressive,

  typically ‘male’ personality and actions

Grooming Codes

Title VII does not prohibit an employer from using gender as a basis for reasonable grooming codes

Gender-based grooming policy that subjects only one gender to different conditions of employment:

not allowed

Jespersen v. Harrah

Outlier to grooming codes

1991 amendment to Title VII – Application outside US.

Title VII applies to U.S. citizens employed by American-owned or - controlled companies doing business outside the United States (unless Llocal law directly forbids it)

Logistical Considerations

Employers may not forgo hiring those of a certain gender because of logistical issues unless it involves an unreasonable financial burden.

Logistical Challenges Examples:

• Female sports reporters going into male athletes’ locker rooms (and vice versa).

• Female firefighters sleeping at a fire station.

• Lack of bathrooms at a construction site

• Breast-feeding or expressing milk at work

Patient Protection and Affordable Care Act of 2010

required employers with 50 or more employees provide a reasonable and private place other than a restroom and breaks for those who give birth to express their milk

EPA concerns the practical content of the job, not title or description, but has been ineffective closing wage gap

True

Title VII’s Bennett Amendment

Exceptions permitted by the EPA also would be recognized by Title VII (jobs compared in a Title VII unequal pay action need not be substantially equal).

Comparable Worth

Title VII action for pay discrimination based on gender

• Jobs held mostly by women are compared with comparable jobs held mostly by men

• Pay is compared to determine if there is gender discrimination

Lily Ledbetter Fair Pay Act

extends statue of limitations period with each discriminatory paycheck

Gender as a BFOQ

Title VII permits gender to be used as a bona fide occupational qualification under certain limited circumstances (for example, theatrical roles)

Pregnancy Discrimination Act

Prohibits discrimination based on pregnancy, childbirth, or related medical conditions

More women in the workforce:

182% increase in the filing of pregnancy discrimination charges over the past 10 years

Fetal Protection Policies

Policies an employer institutes to protect the fetus or the reproductive capacity of

employees

• Limit or prohibit employees from performing certain jobs or working in certain areas.

Muller v. Oregon

upheld protective legislation for women and justified them being in a class of their own for employment purposes

Dothard v. Rawlinson

Alabama’s 5'2"/120-lb minimum height/weight requirements for prison guards illegally discriminated against women

Harper v. Blockbuster Entertainment

affirmed that employers can enforce gender-specific hair grooming policies without violating Title VII

Lynch v. Freeman

established that maintaining filthy, unhygienic, or inadequate restroom facilities that disproportionately harm female employees constitutes disparate impact gender discrimination under Title VII

County of Washington v. Gunther

It held as a matter of law that a sex-based wage discrimination claim cannot be brought under Title VII unless it would satisfy the equal work standard of the Equal Pay Act of 1963

EEOC v. Audrey Sedita Women’s Workout

The court finds that the defendants have failed to assert a factual basis for their single gender hiring policies

• Therefore, summary judgment must be granted in favor of the EEOC.

General Electric Co v. Gilbert

discrimination on the basis of pregnancy was not gender discrimination under Title VII

• two years later, Title VII was amended to include pregnancy under the basis of discrimination

Asmo v. Keane

Asmo claimed Keane terminated her employment because she was pregnant

• On a call everyone congratulate Asmo but Keane, and two months later she was terminated

Sexual Harassment Statutory Bases

• submission to such conduct is made either explicitly or implicitly a term or condition of an individuals employment

• submission to or rejection of such conduct by individual is used as the basis for employment decisions

• such conduct has the purpose or effect of unreasonably interfering with work performance or creating intimidating, hostile, or offensive working environment

Harassment is subset of Title VII discriminatory behaviors

True

Supreme Court hearing of first sexual harassment case

1986

Anti-Harassment Laws

intended to ensure that unwanted advances do not affect the equal opportunity of victims to do their job

____ percent of federal employees reported sexual harassment in each survey

42

Recent surveys by Working Woman, NY Times, National Law Journal report ___ to ____ percent of women harassed in different work contexts

40 to 70 percent

Consensual relationships between employees are not forbidden under the law

True

Relationships become problematic when actions directed toward the employee are/become ______

unwelcome

Quid Pro Quo

employer extracts sex as condition of employment

Hostile Work Enviornment

essence is offensive working environment that interferes with victim’s work

Per 1998 Onacle case:

harasser and harassee need not be different genders

Quid Pro Quo Sexual Harassment

abuse of power in that harasser requests sexual activity from the harassee in exchange for workplace benefits under harasser’s control

Ball State University v. Vance

harasser must have authority to hire/fire, and not just direct work assignments

There must be a link between the retaliation act and the underlying claim

True

Hostile Work Environment Sexual Harassment

harasser creates an abusive, offensive, or intimidating environment for the harassee

• offensive work environment to which one gender is subjected but not the other

Hostile Work Environment Sexual Harassment Prima Facie Elements

• harassment unwelcomed

• harassment based on gender

• harassment affects a term, condition, or privilege of harassee’s employment

• employer had actual knowledge of the hostile environment and took no prompt action

Basis of hostile environment sexual harassment actions:

unwanted activity by the harasser

Meritor Savings Bank v. Vinson

numerous prior sexual contacts had occurred over extended period

• Unwelcome does NOT mean involuntary

McLean v. Satellite

claimant’s prior workplace sexual activities may come into evidence

Severe and/or Pervasive Activity

harassing activity that is more than an occasional act, and is so serious that it interferes with the nature of the job

Reasonable Person Standard

viewing the harassing activity from the perspective of a reasonable person

• tends to be male view

Reasonable Victim Standard

viewing the harassing activity from the perspective of a reasonable person in society at large

Characterization of harassing activity includes:

gender specific sociological, cultural, and other factors

Harassing behavior need not involve sex, requests for sexual activity, sexual comments or other similar activity

True

Anti-Female Animus

recalling bases for race or national origin harassment, hostility toward women and/or their ability to perform jobs or functions can qualify

Andrews v. Philadelphia

hostile actions (vandalism) directed at female officers

Supervisor Toward Employee- No Tangible Employment Action Taken

• employer not strictly liable

• Ellerth v. Burlington Industries

Supervisor Toward Employee- Tangible Employment Action Taken

• generally involves quid pro quo sexual harassment

• employers strictly liable for tangible acts of supervisors

Co-worker harassment or third party harassment of employee

• harasser and harassee are on the same level

• harasser is not employed by the employer (ex: client)

• employer is liable if acts of harassment were known, yet no corrective action was taken by employer

EEOC’s Policy Guidance on Harassment

• Inherent plausibility

• Demeanor

• Motive to Falsify

• Corroboration

• Past Record

Corrective Action Toward Sexual Harassment

• stop the harassment

• not to be out of proportion to the act

• not have the effect of punishing the harassee

Civil Rights Act of 1991- Damages and Jury Trials

employees suing for sexual harassment can:

• ask for up to $300,000 in compensatory or punitive damages

• request a jury trial

Prevention of Sexual Harassment

• employer must make it clear sexual harassment will not be tolerated

• clearly stated and followed up/monitored

First sexual harassment class action approved

Jenson v. Eveleth Taconite Inc.

Harris v. Forklift Systems

claims do not require findings of severe psychological harm to be actionable

Largest religion in the world

Christianity

Free Exercise

right to practice religion freely

Establishment Clause

not to be required to accept government’s state imposed religious beliefs

EEOC Compliance Manual of 2008

claims of religious discrimination doubled between 1992 and 2007

Public Employees Religion

federal and state constitutional guarantees of due process, equal protection, and freedom of religion apply where federal, state, and local govts are the employer

Private Sector

Title VII is the only legislation specifically prohibiting religious discrimination in private employment

Undue Hardship

burden imposed on an employer by accommodating an employee’s religious conflict that would be too onerous for the employer to bear

Religious Orgs. internal employment practices are largely exempt from the prohibitions in Title VII

True

Church of Latterday v. Amos

upheld church’s termination of a janitor in church owned gym for not paying his dues

Ministerial Exception

religious orgs. have full authority to determine who their religious leaders are, and to apply their religious dictates even when those dictates conflicts with workplace antidiscrimination laws

Hosana Tabor Church v. EEOC

supreme court upheld teacher’s firing after taking leave to treat narcolepsy versus an ADA disability discrimination claim but did not closely define to whom exception extends

Key Considerations for Defining Accommodations for Employees

• belief must be closely held by the employee

• takes the place of religion in the employee’s life

Reasonably Accommodate Religion

applies to religious practice, not religious beliefs

Religious Conflict Prima Facie Case

• employee holds religious practice that conflicts with employment requirement

• employee has informed employer of conflict

• employee was discharged for failing to comply with conflicting requirement

Once prima facie case established, burden shifts to employers to prove reasonable accommodation was attempted

True

Right to be free of religious discrimination is not absolute

True

Religious Case Process

• employer considerations

• make sure basis for conflict is a religious one

• attempt a good faith accommodation

• understand limit of employer duty

Factors Determining Reasonableness of Accommodation

• if employer made attempt at accommodation

• size of employer’s workforce

• type of job

• employer’s checking with other employees to see if anyone was willing to assist in accommodation

• financial cost

• admin burdens of accommodation

Factors in Undue Hardship

• nature of employer’s workplace

• type of job

• cost

• possibility of transfer of employee and its effects

• number of employees

Two Types of Religious Harassment

Harassment based on hostility toward beliefs

harassment based in religious activism

EEOC Guidelines Federal Employees 1997

permitted to engage in private religious expression in personal work areas

permitted to engage in religious expression with fellow employees

permitted to engage in religious expression directed at fellow employees but cease when requested or unwelcome

Union Activity

union under a duty to reasonably accommodate religious conflicts

Objecting to payment of union dues violates:

first amendment right to freedom of religion

title VII’s prohibition against religious discrimination

Frazee v. Illinois Department of Employment Security

U.S. Supreme Court decision ruling that states cannot deny unemployment benefits to someone who refuses work for sincere religious reasons, even if they are not part of an organized religious sect

• Not working on Sunday

Peterson v. Wilmur Communication Inc

an employee could not be demoted based on his sincerely held white-supremacist religious beliefs, provided those beliefs did not translate into unlawful workplace action

Golman v. Weinberger

Supreme Court decision ruling that the U.S. Air Force could prohibit an Orthodox Jewish officer from wearing a yarmulke while in uniform

Wilson v. US West Communications

employer reasonably accommodated an employee's religious beliefs—a vow to wear an anti-abortion button with graphic images—by allowing her to wear it only in her cubicle or cover it

• court found that requiring the employee to cover the button did not violate Title VII, as the button caused severe workplace disruption

Chalmers v. Tulon Company of Richmond

employers are not required to accommodate employee religious conduct that harasses or causes distress to coworkers

• sent private letters to employees at home

Vargas v. Sears

accommodation need not be the most reasonable or the one the employee wants

• can involve reassignment, demotion

Trans World Airlines Inc. v Hardison

Supreme Court case holding that employers do not have to provide religious accommodations that impose more than a de minimis (minimal) cost, as that would constitute "undue hardship" under Title VII

Pime v. Loyola University of Chicago

Jesuit university's right to prioritize hiring Jesuits for specific faculty positions; court ruled that reserving roles for Jesuits was a valid bona fide occupational qualification

Peterson v. Hewlett Packard Co.

workplace diversity policy conflict with employee’s religious beliefs

Tooley v. Martin Marietta Corp

established that substituting charitable contributions for union dues is a "reasonable accommodation" for employees with religious objections to union membership