Employment Discrimination Notes

Employment Discrimination

At-Will Employment

  • At-will employment means employment can be terminated at any time by either the employer or employee, with or without cause or notice.
  • This includes hiring, firing, training, demotion, or promotion.
  • The employee has no recourse unless the termination is for a discriminatory reason.
  • Any employee not under a written contract or collective bargaining agreement can quit for any reason without notice.
  • At-will employment is a two-way street.
  • There are exceptions need to remember to this rule.

Employment Discrimination

  • Many statutes protect employees in a "protected class" from employment discrimination.
  • Protected Class: A group of people that cannot be discriminated against including on the basis of race, color, religion, national origin, gender, age, and disability.
  • Title VII of the Civil Rights Act (Title VII), the ADEA, and the ADA are important statutes.

Title VII of the Civil Rights Act (Title VII)

  • Title VII prohibits job discrimination based on race, color, national origin, religion, and gender.
  • This applies to hiring, firing, and any time during the employment process (training, promotion, etc.).
  • Applies to employers dealing in interstate commerce, labor unions, labor hiring halls, employment agencies, state and local governments, and most federal jobs.

Equal Employment Opportunity Commission (EEOC)

  • The EEOC is a very important and powerful administrative agency.
  • The EEOC MUST be consulted first before a lawsuit can be filed in District Court.

EEOC Process

  • The EEOC process is time-consuming.
  • The EEOC must be consulted first.
  • The EEOC looks for settlement.
  • If no settlement is reached, a suit continues.
  • If no settlement is reached, a "Right to Sue" letter is issued, and a case can be filed in court.
  • Reporting procedures depend on business size, business type, and past violations.

Title VII Applicability

  • Generally applies to employers with 15 or more employees working for 20 or more weeks in interstate commerce, labor unions, employment services, etc.
  • Protected Classes: Race, Religion, National Origin, Color, Gender.
  • Gender includes male, female, and as of June 2020, sexual orientation (Bostock v Clayton Cty).
  • Individuals who work for a U.S. company abroad are also protected, unless hiring a certain protected class violates local law, in which case Title VII does not apply.

Intentional vs. Unintentional Discrimination

  • Two types of employment discrimination:
    • Disparate Treatment: Intentional discrimination by an employer, usually against a single individual (very difficult to prove).
    • Disparate Impact: Unintentional discrimination by employers against a group because of facially neutral practices they use in hiring, screening, and sometimes the promotion process.

Disparate Treatment

  • "Prima Facie Case" of Disparate Treatment:
    1. The person is a member of a protected class.
    2. The person applied and was qualified for a job.
    3. The person was rejected by an employer.
    4. The employer continued to seek applicants to fill the job the person was turned down for.
  • Disparate Treatment can happen at any point in time in the employment process.
  • Price Waterhouse v. Hopkins is a relevant case.

Disparate Treatment: The Shifting Burdens

  • If a prima facie case is made, the plaintiff has met their burden of proof to go to court.
  • The burden of proof then shifts to the employer to give a legally acceptable reason as to why the employee was not hired.
  • If the employer meets their burden, the burden of persuasion moves back to the employee to show that the proffered reason was a pretext and that the real reason was in fact discriminatory.
  • McDonnell Douglas v. Green is a relevant case.

Disparate Impact

  • Prima Facie case: easier to prove than disparate treatment.
  • A facially neutral policy impacts employment decisions.
  • The employee must show that the employer's hiring, screening, or employment requirements have a discriminatory impact on the available job pool.
  • Key is statistics.
  • Griggs v. Duke is a relevant case.

Discrimination Based on Race, Color, and National Origin

  • Title VII prohibits employers from discriminating against employees or job applicants on the basis of race, color, or national origin.
  • Race is interpreted broadly to apply to ancestry or ethnic characteristics of a group.
  • National origin refers to discrimination based on a person’s birth in another country or their ancestry or culture.
  • If an employer’s standards or policies for selecting or promoting employees have a discriminatory effect on employees or job applicants in these protected classes, then a presumption of illegal discrimination arises.
  • To avoid liability, the employer must show that its standards or policies have a substantial, demonstrable relationship to realistic qualifications for the job in question.

Additional Protections

  • Title VII also protects against reverse discrimination—that is, discrimination against members of a majority group.
  • Victims of racial or ethnic discrimination may also have a cause of action under 42 U.S.C. Section 1981.
  • This section prohibits discrimination on the basis of race or ethnicity in the formation or enforcement of contracts.

Discrimination Based on Religion

  • Title VII prohibits government employers, private employers, and unions from discriminating against persons because of their religion.
  • Employers cannot:
    • Treat their employees more or less favorably based on their religious beliefs or practices.
    • Require employees to participate in any religious activity or forbid them from participating in one.
  • Reasonable Accommodation: An employer must “reasonably accommodate” the religious practices and sincerely held religious beliefs of its employees, unless to do so would cause undue hardship to the employer’s business.
  • A reasonable attempt to accommodate does not necessarily require the employer to make every change an employee requests or to make a permanent change for an employee’s benefit.
  • An employer is not required to make an accommodation that would cause the employer undue hardship.

Sexual Harassment

  • Two types:
    • Quid Pro Quo: Something for something; i.e., you sleep with the boss, or you don’t get a raise.
    • Hostile Work Environment: The environment is so sexually permeated that a reasonable person would find it offensive and/or hostile, which alters the work environment.
  • Key elements for a hostile work environment:
    • Pervasive or severe sexual jokes, innuendos, explicit emails, and texts.
    • Can be one incident or many.
  • The problem becomes: what is socially permissible vs. true harassment.

Gender Discrimination

  • Gender used to be just male vs. female and vice versa.
  • Same-sex sexual harassment is covered under Oncale v. Sundowner.
  • Sexual orientation was not protected until Bostock v. Clayton County (June 2020), where the U.S. Supreme Court ruled that LGBTQ+ and Gender Identity are protected class.
  • The EEOC followed suit.
  • Pregnancy Discrimination Act: Now falls under a Title VII Claim.
  • Bostock v. Clayton Ct. is an important case to read.

Harasser Identity

  • The identity of the harasser usually doesn’t matter.
  • From the boss down to the janitor – if there is a violation – usually liable – even if they say “Didn’t know.”
  • You don’t have to suffer a tangible job action anymore; the court says it’s the environment that is so pervasive.
  • What if a client/customer harasses?

Prompt Remedial Action

  • Prompt action is key.
  • Remedial action is one way to avoid liability.
  • Having a policy in place and then enforcing the policy is key; if you don’t, you can lose in court.

Damages

  • Damages are capped under Title VII from 50,000 to 300,000 in compensatory and punitive damages (depending on size).
  • Also calculate in their back pay, raises, bonuses, state claims, more than one type of discrimination, more than one federal violation, and any other tort that may be associated, which can be MILLIONS of dollars by the time it’s all said and done.

Defenses to Discrimination

  • There are defenses to discrimination under Title VII.
    • Business Necessity: The qualification that the person is complaining of is necessary to the job (Impact Cases).
    • Need job relatedness and consistency with the needs of the business.
    • Examples:
      • A person being able to carry 175 pounds down a flight of stairs for firefighters.
      • Qualification testing for IT/Engineering jobs.
      • Criminal background check for security sensitive jobs or banks.

Bona Fide Occupational Qualification (BFOQ)

  • When discrimination is essential against a protected class (treatment cases and ADEA).
  • Never race or color.
  • Very narrowly tailored.
  • To succeed, must show discrimination goes to the essence of what the employer does.
  • Must be a credible requirement, not opinion.
  • Examples:
    • Female model wearing model’s clothes.
    • Men only to model men’s cologne.
    • Hiring only a Catholic priest to run a Catholic church.
    • Female counselors in a female domestic abuse shelter.

Other Defenses

  • Quality and Quantity – for work that deals in units.
  • Bona Fide Seniority Systems.
  • Shift Differentials.
  • Many times these are used in line with the Equal Pay Act.

Age Discrimination in Employment Act (ADEA)

  • Covers an individual 40 years and older.
  • Prohibits mandatory retirements (for non-manager workers).
  • Must have 20 or more employees (different than Title VII).
  • Can either be in the hiring or firing process.
  • The EEOC administers but can also have a private cause of action.

ADEA Process

  • Prima Facie Case:
    • Member of a protected age group.
    • Was qualified for the position that was fired from (or not hired for).
    • Was discharged or not hired due to an inference of discrimination (person is under 40).
    • “Reasonable factor other than age.”
  • The question becomes – when is firing really a rational business decision & not discrimination?
  • Same Burden Shifting from McDonnell Douglas.

Americans with Disabilities Act (ADA)

  • Key: an “Otherwise qualified individual” is not hired due to a disability, real or perceived.
  • PFC:
    • Has a disability.
    • Is otherwise qualified for the job.
    • Was excluded based solely on disability.

ADA Challenges

  • Defining what is a ‘disability’.
  • Mental health issues and COVID.
  • ADA – physical or mental impairment – cannot ask outright ‘major life activities’.
  • What is considered a ‘reasonable accommodation’?
  • Workplace Harassment like gender/religion.

Other Notable Laws

  • Equal Pay Act – equal pay for equal work.
  • Prohibits an employer from paying workers of one gender less than wages paid to employees of the opposite gender for work that requires equal skill, effort, and responsibility.
  • "Substantially similar" not equal.
  • Job content is important.
  • Paycheck Fairness Act: Goal: close loopholes.

Other Points to Ponder

  • Smoking – yep, you can get fired for that too – at least in some states.
  • Social Media in hiring/firing – yep.
  • What about Title VII overseas? YES IF – where is the company incorporated?

Conclusions to Discrimination

  • Policies and Procedures in place are KEY.
  • “Employment Process” is in the hiring, firing, training, or promotion of an individual.
  • KEY to knowing Title VII is protected classes and who is covered.
  • Know the PFC’s.