Chapter 16: Employment Discrimination

BLAW 220 Exam #3

Employment Discrimination Law

Legislation, judicial decisions, and administrative agency actions restrict employers from discriminating against workers on the basis of race, color, religion, national origin, gender, sexual orientation, age, disability, or military status.

A protected class is a class of persons defined by one or more of these criteria.

Many states have their own laws that protect employees against discrimination, and some provide more protection to employees than federal laws do.

Title VII of the Civil Rights Act

Title VII prohibits discrimination against employees, applicants, and union members on the basis of race, color, national origin, religion, or gender at any stage of employment.

The Equal Employment Opportunity Commission

Limitations on class actions

• Employees must prove a company-wide policy of discrimination that has a common effect on all plaintiffs covered by the action.

Intentional and Unintentional Discrimination

• Intentional Discrimination

– Disparate-treatment discrimination: occurs when an employer intentionally discriminates against employees who are members of protected classes.

– Establishing a prima facie case

1. The plaintiff is a member of a protected class.

2. The plaintiff applied and was qualified for the job in question.

3. The plaintiff was rejected by the employer.

4. The employer continued to seek applicants for the position, or filled the position with a person not in a protected class.

Discrimination Based on Race, Color, and National Origin

• Reverse Discrimination

– Discrimination against “majority” individuals, such as white males

• Potential Section 1981 Claims

– 42 U.S.C. Section 1981 prohibits discrimination on the basis of race or ethnicity in the formation or enforcement of contracts.

Discrimination Based on Religion

• Government and private employers, as well as unions, are prohibited from discriminating against persons because of their religion.

• Reasonable Accommodation

− Employers must “reasonably accommodate” the religious practices of their employees, unless doing so would cause undue hardship to the employer’s business.

Discrimination Based on Gender

• Employers are forbidden from discriminating against employees on the basis of gender.

Pregnancy Discrimination

− Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in ability to work.

Wage Discrimination

• The Equal Pay Act requires equal pay for male and female employees doing similar work at the same establishment.

Discrimination Based on Sexual Orientation and Gender Identity

• Employers are not permitted to discriminate against an employee based on sexual orientation or gender identity.

Title VII Prohibits both Intentional and Unintentional Discrimination

Constructive Discharge

• A termination of employment brought about by making the employee’s working conditions so intolerable that the employee reasonably feels compelled to leave.

• Proving constructive discharge

• Constructive discharge applies to all Title VII discrimination.

Sexual Harassment

• The demanding of sexual favors in return for job promotions or other benefits, or language or conduct that is so sexually offensive that it creates a hostile working environment.

• Harassment by Supervisors

– That the employer has taken reasonable care to prevent and promptly correct any sexually harassing behavior.

– That the plaintiff-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.

Online Harassment

• Employees’ online activities can create hostile work environment.

• Employers may avoid liability if they take prompt remedial action.

Remedies under Title VII

• Employer liability may be extensive. If the plaintiff successfully proves that unlawful discrimination occurred, he or she may be awarded:

– Reinstatement

– Back pay

– Retroactive promotions

– Damages

– Compensatory and/or punitive damages

Discrimination Based on Age

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination on the basis of age against individuals forty years of age or older.

Procedures under the ADEA

• Prima facie age discrimination case

1. Member of protected age group

2. Qualified for position

3. Discharged because of age discrimination

Discrimination Based on Disability 

• The Americans with Disabilities Act (ADA) basically requires that employers reasonably accommodate the needs of persons with disabilities unless to do so would cause undue hardship.

• Procedures under the ADA

1. The plaintiff has a disability.

2. The plaintiff is otherwise qualified for the employment in question.

3. The plaintiff was excluded from the employment solely because of the disability.

• Reasonable Accommodation

– Undue hardship

– Job applications and preemployment physical exams

– Substance abuse

– Health-insurance plans

Discrimination Based on Military Status

• The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination against persons who have served in the military.

Coverage of Employment Discrimination Laws: TITLE VII OF THE CIVIL RIGHTS ACT

• Prohibits discrimination based on race, color, national origin, religion, gender, sexual orientation, and pregnancy; prohibits sexual harassment.

• Applies to employers with fifteen or more employees.

Coverage of Employment Discrimination Laws: AGE DISCRIMINATION IN EMPLOYMENT ACT

• Prohibits discrimination against persons over forty years of age.

• Applies to employers with twenty or more employees.

Coverage of Employment Discrimination Laws: AMERICANS WITH DISABILITIES ACT (AS AMENDED)

• Prohibits discrimination against persons who have a mental or physical impairment that substantially limits a major life activity, who have a record of such an impairment, who are regarded as having such an impairment, or who are associated with a disabled person.

• Applies to employers with fifteen or more employees.

Coverage of Employment Discrimination Laws: UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT

• Prohibits discrimination against persons who have served in the military.

• Applies to all employers, even if they have only one employee.

Defenses to Employment Discrimination

• Business necessity

• Bona fide occupational qualification (BFOQ)

• Seniority system

• After-acquired evidence of employee misconduct

Affirmative Action

• Affirmative action: job-hiring policies that give special consideration to members of protected classes in an effort to overcome present effects of past discrimination.

• Equal protection issues

• State laws prohibiting affirmative action programs