Employment Discrimination Chapter 19
Federal Anti-Discrimination Statutes
Term: What is the Civil Rights Act of 1866?
Definition: This Act, passed after the Civil War, guarantees that all people in the United States have the same right to make and enforce contracts as white citizens. This includes employment contracts, meaning employers cannot discriminate based on race when hiring, promoting, or setting employment terms. The Act provides some significant advantages for plaintiffs compared to later laws, like the Civil Rights Act of 1964.
Term: What is the Equal Pay Act of 1963?
Definition: This Act makes it illegal for employers to pay men and women different wages for equal work that requires equal skill, effort, and responsibility and is performed under similar working conditions.
Term: What is Title VII of the Civil Rights Act of 1964?
Definition: This landmark legislation prohibits employment discrimination based on race, color, religion, sex, and national origin. It applies to a wide range of employment decisions, including hiring, firing, promotions, compensation, and working conditions.
Term: What is the Pregnancy Discrimination Act?
Definition: This Act, an amendment to Title VII, prohibits discrimination based on pregnancy, childbirth, or related medical conditions. It requires employers to treat pregnant employees the same as other employees with similar abilities or limitations. For instance, a pregnant employee temporarily unable to lift heavy objects should be given the same light-duty assignments as an employee with a back injury.
Term: What is the Americans with Disabilities Act (ADA)?
Definition: This Act prohibits discrimination against qualified individuals with disabilities in all aspects of employment. It applies to employers with 15 or more employees and requires them to provide reasonable accommodations to disabled employees unless it causes undue hardship.
Term: What is the Genetic Information Nondiscrimination Act (GINA)?
Definition: This Act prohibits discrimination based on genetic information, such as family medical history or genetic test results. It prevents employers from using this information in hiring, firing, or other employment decisions and protects the confidentiality of genetic information.
Disparate Impact vs. Disparate Treatment
Term: What's the difference between disparate impact and disparate treatment in discrimination claims?
Definition:
Disparate treatment is intentional discrimination against an individual because they belong to a protected category (e.g., refusing to hire someone because of their race). Proof of discriminatory intent is required.
Disparate impact occurs when a seemingly neutral policy or practice disproportionately affects a protected group, even if there was no intent to discriminate. The policy might seem fair on its face but has a negative impact in practice.
Term: Give an example of disparate treatment.
Definition: Imagine a company only hires men for a physically demanding job, even though women are equally capable of performing the work. This is a clear case of intentional discrimination based on sex.
Term: Give an example of disparate impact.
Definition: A company requires all applicants to have a high school diploma for a certain job. However, this requirement unintentionally screens out a disproportionate number of minority applicants who, due to historical socioeconomic factors, may have lower high school graduation rates. Even if the company didn't intend to discriminate, the policy has a disparate impact on minority applicants.
Defenses to Discrimination Claims and Business Responses
Term: What are some common defenses employers use against discrimination claims?
Definition:
Merit: The employment decision was based on legitimate, job-related qualifications, such as experience, skills, education, or performance.
Seniority: The decision was based on a bona fide seniority system that rewards employees based on length of service, not discriminatory reasons.
Bona Fide Occupational Qualification (BFOQ): A specific characteristic (religion, sex, or national origin, but not race or color) is essential to perform the job. For instance, a women's clothing store might argue that being female is a BFOQ for fitting room attendants to protect customer privacy.
Poor Work Performance: The employee was terminated or disciplined due to documented performance issues, not discriminatory reasons.
Legitimate Business Decision: The decision was based on sound business reasons unrelated to the employee's protected characteristics, such as economic considerations or restructuring.
Term: What are some ways businesses can prevent and address discrimination?
Definition:
Implement a clear anti-discrimination policy and communicate it to all employees.
Provide regular training on discrimination and harassment.
Establish a formal complaint process that is accessible and confidential.
Investigate all complaints promptly and thoroughly.
Take appropriate disciplinary action against employees found to have engaged in discrimination or harassment.
Promote diversity and inclusion in the workplace through recruitment, hiring, and promotion practices.
Types of Harassment
Term: What is workplace harassment?
Definition: Unwelcome conduct based on an employee's protected characteristic (e.g., race, color, religion, sex, national origin, age, disability) that creates a hostile or offensive work environment.
Term: What are the two main types of sexual harassment?
Definition:
Quid Pro Quo: "This for that" harassment where job benefits are conditioned on sexual favors (e.g., a supervisor promising a promotion in exchange for a sexual relationship).
Hostile Work Environment: Pervasive unwelcome sexual conduct that creates an intimidating, hostile, or offensive work environment (e.g., offensive jokes, unwanted touching, sexually suggestive comments or gestures).
Term: What are some other forms of hostile work environment harassment?
Definition: Harassment can be based on any protected characteristic. Examples include:
Same-Sex Harassment: Harassment by someone of the same sex as the victim. The Supreme Court has made it clear that this is also prohibited.
Racial Hostility: Conduct based on race that creates a hostile work environment (e.g., racial slurs, racist jokes, displaying racist symbols).
Color-Based Hostility: Harassment based on skin color, even within the same racial group (e.g., making derogatory comments about someone's dark skin tone).
National Origin Hostility: Harassment based on someone's country of origin or ethnicity (e.g., making offensive comments about their culture or accent).
Religious Hostility: Harassment based on someone's religious beliefs (e.g., mocking their religion, pressuring them to participate in religious activities, prohibiting them from wearing religious attire).
Disability Hostility: Harassment based on someone's disability (e.g., making fun of their disability, refusing to provide reasonable accommodations, spreading rumors about their medical condition).
Age-Based Hostility: Harassment based on someone's age, especially older workers (e.g., making comments about them being "too old" to work, excluding them from social events, denying them opportunities because of their age).
Recent Legislation and Supreme Court Cases
Term: What is the significance of the #MeToo movement?
Definition: The #MeToo movement, which gained momentum in 2017, has brought widespread attention to the prevalence of sexual harassment and assault, particularly in the workplace. It has empowered victims to speak out and has led to increased scrutiny of workplace cultures and accountability for perpetrators.
Term: What is the CROWN Act?
Definition: The CROWN (Create a Respectful and Open World for Natural Hair) Act, which has been enacted in several states and cities, prohibits discrimination based on natural hairstyles associated with race, such as dreadlocks, braids, afros, and twists. It recognizes that hair is part of racial and cultural identity and should not be a basis for employment discrimination.