Employment Discrimination

Primary Federal Workplace Antidiscrimination Statutes

(1) Title VII of the Civil Rights Act of 1964 and subsequent amendments (e.g., the Civil Rights Act of 1991)

(2) The Age Discrimination in Employment Act (ADEA) of 1967

(3) The Americans with Disabilities Act (ADA) of 1990 (last amended in 2009)

(4) The Equal Pay Act of 1963 (part of the FLSA, but contains some antidiscrimination provisions as well

EEOC

• Federal agency enforcing workplace anti-discrimination laws

• 5 commissioners appointed by the President, confirmed by the Senate

• Uses rulemaking, investigations, and enforcement actions

• Two main roles:

  1. Receives and investigates discrimination complaints

  2. May file lawsuits on behalf of employees in certain cases

EEOC Procedure

• Filing an EEOC complaint against the employer

within 180 days of the last act of discrimination

• Employer response and EEOC investigation

• EEOC negotiations to reach settlement with employer

• The EEOC issues a right to sue letter to the

employee or decides to file suit on the employee’s

behalf

Protected Classes

• Race/Color (Includes protection for characteristics related to race,

such as skin color, hair texture, or certain facial features)

• National Origin (Includes birthplace, ancestry, culture, or accent)

• Religion (Includes sincerely held religious beliefs, must reasonably accommodate)

• Gender (Includes gender stereotyping, includes pregnancy, Pay differential based on gender prohibited (Equal Pay Act of 1963)

Disparate Treatment = intentional Discrimination

• Plaintiff must prove the employer intentionally discriminated against him or her by denying a benefit or privilege of employment.

Prima Facie Case

• They are a member of a protected class.

• They applied for and were qualified for the job (or promotion) and met the employer’s legitimate expectations.

• They were rejected by the employer.

• The employer hired or continued to seek someone outside the protected class.

Systematic Approach

• Employee proves a prima facie case – Shows evidence suggesting discrimination occurred.

• Employer responds with a legitimate reason – Provides a non-discriminatory reason for its action.

• Employee shows pretext – Demonstrates that the employer’s reason is false and the real reason was discrimination.

McDonnell Douglas Test

• Plaintiff establishes a prima facie case → first step.

• Burden shifts to employer to give a legitimate, nondiscriminatory reason for the action (e.g., firing).

• Burden shifts back to employee to show the employer’s reason is false, called a pretext.

Disparate impact =Unintentional Discrimination Griss Standard

• Neutral practice: The employer has a rule, test, or procedure that looks neutral.

• Employee shows disproportion: The employee proves the practice disproportionately affects a protected group compared to the qualified labor market.

• Employer proves necessity: The employer must show the practice is job-related and necessary for the business.

4/5 rule

• If a group’s selection rate is less than 80% of the rate of the highest group, it is usually considered evidence of adverse impact.

• If the rate is 80% or higher, it generally is not considered adverse impact.

Sexual Harassment Quid Pro Quo

• Something in exchange for something else

• Retaliation

Hostile Envrionemnt

• Not limited to sexual harassment, could also apply to race, religion, and national origin.

• So severe or pervasive as to alter the conditions of the victim’s employment.

•Factors:

• Happens often or is very serious (frequency & severity)

• Threatening, humiliating, or offensive behavior

• Stops someone from doing their work properly

Employer Liability for harassment by supervisors

• Employer strictly liable for tangible employment

actions by supervisor.

• If no tangible action taken still liable, but can raise an

affirmative defense by showing actions taken to

prevent occurrenc

For Harassment by Coworkers and Nonemployees

• An employer can be held liable for harassment if they knew or should have known about it and did not take steps to prevent it.

• This includes online harassment.

• Example: Cases like Pizza Hut show that employers must address harassment promptly or face liability.

Employer Defenses – Best Practices

• Employers should have a written policy saying all sexual conduct and talk at work is not allowed.

• Employees should feel safe to report complaints.

• All complaints must be thoroughly investigated.

• Failing to respond properly can lead to legal liability, sometimes costing the company a lot of money.

Age Discrimination (ADEA)

• Who is covered: Employees 40 years and older.

• What must be shown: An adverse employment action (like firing, demotion, or denial of promotion) motivated at least in part by age bias.

• Applies to: Both disparate treatment (intentional discrimination) and disparate impact (policies that unfairly affect older workers).

Disability Discrimination ADA

• Plaintiff must show:

  1. They have a disability.

  2. They are otherwise qualified for the job in question.

  3. They were excluded from employment solely because of the disability.

• Supreme Court ruling: Even if the employer and employee agree to arbitration, the EEOC may still bring a lawsuit against the employer.

Reasonable Accommodations

• An accommodation may cause undue hardship if it is too difficult or expensive for the employer. Factors considered include:

  • Nature and cost of the accommodation

  • Financial resources of the facility, number of employees, and effect on expenses and resources

  • Overall size and resources of the employer and the business

  • Type of operation the employer runs

Defenses to Employment Discrimination

• Faragher/Ellerth: Employer may avoid liability in harassment cases if they took reasonable steps to prevent and correct harassment.

• Business Necessity: Job requirement is allowed if essential, even if it disproportionately affects a protected group (disparate impact).

• Bona Fide Occupational Qualification (BFOQ): Qualification allowed if necessary for normal business operations (disparate treatment).

• Seniority or Merit System: Allowed if the system is not discriminatory.

• After-Acquired Evidence: Not a full defense, but can limit employee remedies.

Remedies may include:

•Back pay

•Reinstatement

•Wage adjustments

•Retroactive promotions

•Attorney fees

•Punitive damages possible for actual malice or reckless disregard of an employee’s rights.