Chapter 19: Employment Discrimination
the courts have interpreted these provisions to prohibit employment discrimination by federal, state, and local governments
civil rights act, 1866: prohibit racial discrimination in both private and public employment (does not apply to the federal government)
equal pay act, 1963: a worker may not be paid at a lesser rate than employees of the opposite sex for equal work
unequal pay is legal if it is the result of:
seniority
merit
quantity or quality of work
any other factor than sex
note: unlike the civil rights act of 1964, the epa does not require a plantiff to prove that her employer intended to discriminate
civil rights act, 1964: it is illegal for employers with 15 or more employees to discriminate on the basis of race, color, religion, sex, or national origin
protected categories: race, color, religion, sex, national origin
prohibited activities
disparate treatment: the plaintiff must show that she was treated less favorably than others because of one of the protected classes
requirements are:
the plaintiff myst show evidence that:
she belongs to a protected category
she suffered adverse employment action
this action occurred under conditions giving ride to an inference of discrimination
the defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons
to win, plaintiff must prove that the employer intentionally discriminated (this motive can be inferred from differences in treatment)
disparate impact: if the employer has a rule that, on its face, is not discriminatory, but in practice excludes too many people in a protected category
requirements are:
plaintiff must present a prima facie case
defendant must offer some evidence that the employment practice was a job-related business necessity
to win, plaintiff must prove either that the employer’s reason is a pretext or that the other, less discriminatory, rules would achieve the same results
hostile work environment: if they permit a work environment that is so hostile toward people in a protected category that it affects their ability to work
sexual harassment
quid pro quo: a latin phrase meaning “one thing in return for another”
hostile work environment
same-sex harassment
hostile environment based on race
hostile environment based on color
hostile environment based on national origin
employer liability for harassment unless:
the company is liable if it knew or should have known about the conduct and failed to stop it
even if the company was unaware of the behavior, it is still liable if the victimized employee suffered a “tangible employment action” (firing, demotion, reassignment)
it used reasonable care to prevent and correct harassing behavior
the employee unreasonably failed to take advantage of the complaint procedure
retaliation: prohibits employers from retaliating against workers who oppose discrimination, bring claim under the statute, or take part in an investigation hearing. defendant can defeat a retaliation claim by showing that there were other, nondiscriminatory reasons for this action
religion: employers cannot discriminate against a worker because of his religious beliefs
note: employers must make reasonable accommodations for a worker’s religious practices unless the request would cause undue hardship on the business
sex: “gender must be irrelevant to employment decisions”
appearance
must have the same standards for men and women
unattractiveness is not a protected category
generally, employment decisions based on weight are legal
parenthood
pregnancy: the pregnancy discrimination act (pda) is an amendment to the civil rights act, which prohibits employers from firing, refusing to hire, or failing to promote a woman because she is pregnant
equal employment opportunity commission (eeoc): the agency charged with enforcing federal discrimination law
parental status: discrimination based on parental status is illegal, involving treating men and women differently
sexual orientation and transgender: supreme court recently ruled as protected classes
background and credit checks: eeoc regulations prohibit companies from using criminal history information in a way that has a adverse impact on employees in a protected category if the background information is irrelevant in determining whether the employee is appropriate for the job
employers may not consider arrest records
eeoc discourages the use of credit checks because minorities tend to have worse credit than whites
immigration: it is illegal for employers to discriminate against noncitizens because “national origin” is a protected category
reverse discrimination: making an employment decision that harms a white person or a man because of his gender or race
affirmative action: programs that remedy the effects of past discrimination
three different sources:
litigation
voluntary action
government contracts
defenses to charges of discrimination
merit: a defendant is not liable if he shows that the person he favored was the most qualified
seniority
bona fide occupational qualification: permitted to establish discriminatory job requirements if they are essential to the position in question
age: an employer with 20 or more workers may not fire, refuse to hire, fail to promote, or otherwise reduce a person’s employment opportunities because he is 40 or older
to prove this, he must show:
he is 40 or older
he suffered adverse employment actions
he was qualified for the job for which he was fired or not hired
he was replaced by a younger person
the employer must present evidence that its decision was based on nondiscriminatory reasons
plaintiff must show that:
employer’s reasons are pretext
the employer intentionally discriminated
if not for the plaintiff’s age, the employer would not have taken these same actions
disparate impact: arise when an employer’s actions do not explicitly discriminate, but have an adverse impact on people aged 40 and over
rehabilitation act, 1973: prohibits discrimination on the basis of disability by the executive branch of the federal government, and entities that receive federal funds
american’s with disabilities act
disability: someone with a physical or mental impairment that substantially limits major life activity or the operation of major bodily function or someone who is regarded as having such an impairment
once it is established that a worker is disabled, employers may not discriminate on the basis of disability as long as the worker can, with reasonable accommodation, perform the essential functions of the hob